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*/5&3/"5*0/"-1-"/5(&/&5*$3&4063$&4*/45*565& ISSUES IN GENETIC RESOURCES NO. 10 3
Contents
Acknowledgements 4
Foreword 5
I. Introduction 6
II. History and development 12
III. The FAO Global System for the Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture 20
IV. The International Treaty on Plant Genetic Resources for Food and Agriculture 27
V. The Convention on Biological Diversity 45
VI. Origin and movement of PGR: implications for access and benefi t-sharing policies 56
VII. The TRIPS Agreement 61
VIII. UPOV 64
IX. Phytosanitary and biosafety measures 68
X. Development and improvement of genetic resources 73
XI. Cross-cutting issues 83
Annexes: Economic issues 87
Annex 1. Economic concepts for on-farm and ex situ conservation of crop genetic resources 89
Annex 2. Changing roles of private and public agricultural research and effects on the utilization, access to, and conservation of PGR 109
Acronyms and abbreviations 123
SUSAN BRAGDON (EDITOR) 4 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Acknowledgements
The chapters contained in this volume were prepared substantially by Susan Bragdon and Cary Fowler, with major contributions by Clive Stannard and Pepe Esquinas (Chapter 3), Carlos Correa (Chapters 7–8), Emile Frison (Chapter 9) and Victoria Hensen-Apollonio (Chapter 10). Melinda Smale and Paul Heisey provided the chapters in Annex 1 and 2, re- spectively. In addition, the authors are grate- ful for the helpful comments and additions by Jan Engels, Elizabeth Goldberg, Michael Halewood, Coosje Hoogendoorn, Louise Sperling and Jane Toll. Finally, excellent feedback on the substance of these chapters was provided from the participants at the SGRP–IPGRI–ISNAR Law and Policy of Relevance to Plant Genetic Resources Man- agement, Training Module Testing Workshop that was held in Nairobi, Kenya, from June 24 to 28, 2002, where the training manual was launched. These include: Mr Jean Marie Fondoun, Mr John Wasswa Mulumba, Mr Amadou Sidibé, Dr Wilson Y F Marandu, Dr Samuel Bennett-Lartey, Mr Zachary K. Muth- amia, Dr Bert Visser, Dr Mohammed Ajlouni, Mr Clark Peteru, Mr Manuel Ruiz Muller, Mr Kent Nnadozie, Mr Mesfi n Bayou, Prof. Koffi Akpagana, Prof. Levi S. M. Akundabweni, Mrs Elizabeth Maruma Mrema, Prof. Tere- sita H Borromeo, Dr Zenete Peixoto França, Dr Issiaka Zoungrana, Dr Raymond Vodouhe and Dr Dan Kiambi. The publication of this Issues Paper was made possible by the gener- ous support of donors to IPGRI and SGRP. Comments and feedback continue to be welcome. Please direct them to:
Susan H. Bragdon Senior scientist, Law and Policy International Plant Genetic Resources Institute (IPGRI) Via dei Tre Denari, 472/a 00057 Maccarese Rome, Italy Email: s.bragdon@cgiar.org
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 5
Foreword
The policy and legal environment within on law and policy that em a nates from the which scientists and other professionals in ter na tion al arena, though as the introduc- concerned with the conservation and devel- tion and chapter one note, the dynamic be- opment of plant genetic resources work has tween these two levels affects developments changed dramatically over the last couple of na tion al ly and internationally. decades. Scientifi c advances, the increased This Issues Paper is an attempt to give ge- privatization of agricultural research and net ic resources professionals the in for ma tion other processes of “globalization” have they need to be more sensi tive to the policy created a legal and policy environment that and legal en vi ron ment in which they do their reaches into and affects the conservation, work. Other more in-depth analysis of each of use, development and management of plant the treaties covered is available. This vol ume genetic resources. Today, scientists and other has a practical goal. Its aim is to increase the professionals dealing with plant genetic re- confi dence of genetic resource profes sion als sources cannot access, develop or conserve that they are operating and making max i mum these resources without negotiating their way use of and not run ning afoul of policies or laws through a complex set of laws and policies. as they go about their important busi ness of The legal and policy issues affecting the con serv ing, developing and man ag ing plant conservation and management of plant ge- genetic resources. net ic resources for food and agriculture The chapters in this book were prepared (PGRFA) are numerous and multifaceted. as part of a larger process of the CGIAR Sys- Further complicating mat ters, the legal sys- tem-wide Genetic Resources Programme tem (insofar as it can be called a “system”) (SGRP) to respond to the need of genetic re- affecting the con ser va tion and management source professionals for training in laws and of PGRFA has developed piecemeal over time policies of rele vance to genetic resources. A and increasingly in various fora with dis tinct com pre hen sive training module with lec- interests and motivations. As the intro duc tion tures, presentations, exercises and ex plana- to this volume so aptly notes, a genetic re- tory notes has been produced by IPGRI and source professional making decisions with out ISNAR for SGRP and is available on CD- considering the pol icy and legal impli ca tions ROM.1 Opportunity for translation from may result in an inadvertent misstep and a English to other lan guages; its adaptation for corre spond ing account on the front page of regional and sub-regional “training of train- a well-read newspaper! ers” workshops, and its wide dissemination Some legal issues arise from ob li ga tions and for keeping the ma te ri al up-to-date is derived from international law and the in ter - being sought. re lation ship of different agreements. Some legal questions and systems that were initial ly primarily national in character through glo- bal iza tion have become “internationalized” Geoffrey Hawtin (e.g. intellectual property rights under the Former Director General, IPGRI, and TRIPS Agreement). This Issues Paper focuses former Programme Leader, SGRP
1 Bragdon, S., Fowler, C. and Franca, Z. (eds). SGRP, IPGRI and ISNAR. 2003. Law and Policy of Relevance to the Management of Plant Genetic Resources. Learning Module. International Service for National Agricultural Research, The Hague, Netherlands.
SUSAN BRAGDON (EDITOR) 6 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
I. Introduction
While controversies over the ownership, con- those who have practical management and/ trol and exchange of plant genetic resources or policy-making respon si bil i ties for plant for food and agriculture (PGRFA) are old, genetic resourc es. It is intended to help ge- modern-day management of these resources netic resource professionals understand the is more complicated than ever before. Those policy envi ron ment in such a way as to pro- in charge of the physical care of PGRFA could mote the sound and scientifi c management be forgiven for complaining that they need of PGRFA whether in their role as cus to di ans degrees in politics, law and genetics just to and developers of this resource or as policy- survive. And, those who participate in policy- makers. This audience’s in ter est in the sub ject making face an equally bewildering environ- is not “academic”. It is practical. Thus, the ment. Trade relations, intellectual property chapters focus not so much on the po liti cal rights, biosafety, indigenous communities and issues that underlie existing laws, agreements public–private sector relations are just a few and policies, but on how these can be un der - of the topics that are always on the table. In stood, implemented and shaped. addition, everyone faces the prospect of dealing This Issues Paper includes an ex ten sive with numerous laws, regulations, guidelines section on the International Treaty on Plant and policies, and following events in multiple Genetic Resources, as well as a section on fora, from those at the national level to the the Convention on Bi o log i cal Diversity. Both international: FAO, the Convention on Bio- agreements have implications for how gene- logical Diversity, World Trade Organization, banks and breeding programmes man age World Intellectual Property Organization, collec tions/materials, as well as for the laws, etc. The complexity and contentiousness of policies and regulations that countries adopt the new biopolitical environment is refl ected to promote implementation. Ge net ic in new language that did not exist 25 years resource professionals will be in ter ested in ago: GMOs, biopiracy, Farmers’ Rights, Fran- understanding these legal agreements be- kenstein Foods, and more. The consequences cause of a practical need to make sure that of not being up to date and knowledgeable their governments or institutions are meet- about all these matters and fora can be costly, ing legal re quire ments and taking actions both professionally and institutionally. One ap pro pri ate for the implementation of the misstep and a genetic resource professional agree ments. The average user will probably can end up reading about him/herself in the not need to know everything about the morning newspaper! To help serve as a refer- agree ments. More complete academic ence throughout this book, Table 1.1 provides analyses of the Treaty and the Conven tion a summary of the relevant instruments, their are or will short ly be available. This Issues scope of coverage and their current status. Paper fo cus es on the areas that have imme- Different political and scientifi c in ter ests diate practical implications for the work of compete for what they want or think is right. genetic resource profes sion als. The hope is And yet, at the end of the day it is clear that this Issues Paper will help these profession- nations and people are interdependent for als become more knowledgeable, sensitive, plant genetic resources. This simple fact dic- confi dent and effec tive actors in the fi eld of tates that we cooperate to ensure the conser - plant genetic resourc es. va tion of PGRFA and its orderly man age ment, This Issues Paper will fi rst cover the his- including the facilitation of ac cess and fair tory and development of law and policy of benefi t-sharing. relevance to genetic re sourc es. This puts cur- These chapters are intended to pro vide a rent policies, laws and con tro versies in con- basic foundation in in terna tion al laws and text and illustrates that the legal “system” is policies of relevance to genet ic resources for dynamic and evolutionary. Chapter 3 out lines
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 7
the FAO global system before turning to the Be cause eco nom ic issues and in stru ments International Treaty, the subject of Chap ter are important aspects of law and pol icy, this 4. The analysis of in ter na tion al legal in stru - Issues pa per contains two an nex es ad- ments continues in Chap ters 5 – 9 which dress ing economic issues. Annex 1 ex plores look at the convention on Biological Diver- the economic con cepts for on-farm and ex sity, the WTO/TRIPS agreement, UPOV situ conservation of crop genetic resources. and phytosanitary and biosafety measures An nex 2 looks at the changing roles of pri- re spec tive ly. The Issues Paper concludes vate and public agri cul tur al research and with a dis cus sion of the cross-cutting issues effects on the utilization, ac cess to, and that arise from these laws and policies. conservation of PGR.
Table 1.1. Legal instruments for PGRFA, their coverage and status Law or Policy Topic / Applicability Status / Jurisdiction International Covers all PGRFA (does not Adopted by FAO Conference in 2001 Treaty on Plant regulate non-food and agricultural Genetic Resources uses) and addresses diverse topics, Entry into force after the 40th country for Food and including conservation, use, ratifi es Agriculture international cooperation, technical (ITPGRFA) assistance, and farmers’ rights Legally binding for all countries that ratify; will not apply to those that do not Establishes multilateral system for select crops (approx. 35 crops/crop Countries that ratify will be required complexes plus certain forages) to bring national laws and regulations into conformity with the Treaty Sets rules for access and benefi t- sharing for these materials, both CGIAR Centres will likely sign ex situ and in situ, while respecting agreements with the Treaty’s property rights Governing Body in order to adhere to the Treaty formally Does not specify access and benefi t- sharing rules for non-multilateral Note: some of the Treaty’s provisions system PGRFA (except for CGIAR (e.g. Farmers’ Rights) are phrased holdings of such crops that are in ways that do not create specifi c, currently covered under FAO– prescribed (enforceable) obligations or CGIAR “in-trust” agreements). requirements. Convention Covers all biodiversity Legally binding for countries that on Biological have ratifi ed (183 as of March 2002) Diversity (CBD) Provides general principles for access and benefi t-sharing As for above, ratifying countries concerning materials accessed must adopt appropriate legislation/ after the coming into force of regulations and/or bring existing ones the CBD, yet not covered by the into harmony with the Convention International Treaty on PGRFA (i.e. non-multilateral and non-CGIAR Convention does not apply to non- PGRFA). ratifying countries. International Addresses phytosanitary issues Legally binding for the 113 countries Plant Protection with the transfer of plants and that are party to the Convention. Convention animals, including PGRFA.
SUSAN BRAGDON (EDITOR) 8 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Table 1.1. (cont.)
Law or Policy Topic / Applicability Status / Jurisdiction International Covered all PGRFA 113 countries adhered to the IU, which Undertaking on was adopted at FAO in 1983 Plant Genetic Addressed the exploration, Resources (IU) preservation, evaluation and the Provisions of the IU were always making available of PGRFA. voluntary—it was a non-binding agreement
IU was renegotiated, resulting in the ITPGRFA, thus IU is superceded by the Treaty
Note: FAO–CGIAR “in trust” agreements refer to the IU, thus certain portions of the IU are still relevant in the context of the FAO–CGIAR agreements. WTO–TRIPS Member States must comply with Entered into force January 1995 Agreement minimum standards of protection of IP Marrakech Ministerial Meeting in April 1994 Must ensure protection of microorganisms, non-biological Legally binding on all WTO Members and microbiological processes and plant varieties that meet Has possibility for trade sanctions for protection criteria those found not in compliance. UPOV (Plant UPOV aims to maximize plant Four versions; only 1991 is still open Breeders’ Rights) breeding efforts by providing a for joining model for securing protection under UPOV for plant breeders’ Legally binding on 50 Parties to the rights for plant varieties. Treaty. Regional Coordinated laws/policies exist Apply only to member countries. agreements (e.g. regarding some PGRFA-related Andean Pact) topics, through the EU (biotech, patenting) and the Andean Pact (access). Network Networks exist at both the regional Agreements apply to the contracting agreements and crop levels. Virtually all parties, be they states or institutions regions have multiple, regional/ subregional networks. Some have Note: Neither the CBD nor the ITPGFRA crop working groups. specifi es how it relates to particular network agreements between states. In Crop networks relate to such cases, the Vienna Convention on the conservation, genetic resource Law of Treaties may be relevant. However, transfer and breeding / this Treaty provides no guidance in cases improvement, and function for a where states are party to one agreement wide array of crops, at the regional but not the other and supraregional levels. See FAO’s State of the World’s Plant Genetic Resources (1998) for a listing and description.
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 9
Table 1.1. (cont.)
Law or Policy Topic / Applicability Status / Jurisdiction Network FAO (through the International Note: The Coconut Genetic Resources agreements (cont.) Undertaking) has an Network (COGENT) is a formal member international network of ex of the FAO’s international network of ex situ collections. The FAO situ collections. Commission on Genetic Resources oversees and sets NGO networks are typically informal policies for the network per se. or project-based; those involving the private sector are based on formal SADC and Nordic regions have agreements or contracts. centralized germplasm storage and agreements covering ownership and transfer of these materials.
There are some NGO networks dealing with conservation and farmer participatory crop improvement.
There are also joint country/ private sector projects (e.g. Latin American Maize Project) involving germplasm conservation and evaluation
National laws National laws/regulations may Apply only to the individual address diverse topics such as countrya conservation, use, access, benefi t- sharing, farmers rights, quarantine, Note: national laws/regulations may seed marketing standards, be required to meet international treaty intellectual property rights. obligations. In addition, existing laws/ regulations may need to be altered to bring them into harmony with international treaties, post-ratifi cation.
FAO–CGIAR Agreements apply to the 11 Centres (those having ex situ Agreements management, availability and collections) have signed binding Placing Collections transfer of specifi cally designated agreements with FAO under the germplasm Auspices of FAO Agreements were foreseen as interim, Joint statements address concern pending the coming into force of Associated the practical implementation of the the ITPGRFA; thus, the Treaty’s documents/ agreement; the agreed MTA (which Governing Body and the Centres will instruments has the force of a binding contract develop new agreements in line with include: (a) 2 on recipients) is used in the transfer Article 15 of the Treaty. Until then, Joint FAO–CGIAR of designated germplasm. current agreements apply. statements on the Agreement; (b) standard Material Transfer Agreement (MTA)
SUSAN BRAGDON (EDITOR) 10 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Table 1.1. (cont.)
Law or Policy Topic / Applicability Status / Jurisdiction FAO Global Plan Scope: all PGRFA Adopted in 1996 by the 4th Intl of Action Technical Conference on PGRFA (150 Contains specifi c “activities” on in countries) situ conservation and development, ex situ conservation, utilization, Legally non-binding and institutions and capacity- building. Serves as a framework, guide and catalyst for PGRFA efforts
Is referenced in the ITPGRFA, and thus has a bearing on and a relation to a legally binding agreement. FAO–IPGRI Sets out recommended genebank Recommended by FAO and IPGRI Genebank storage standards for seeds of to be used as the reference in Standards orthodox species only. national, regional and international genebanks
Endorsed by the FAO Commission on Plant Genetic Resources in 1993
Not legally binding
Note: both FAO and IPGRI have published other “standards” in the past, inter alia on design of genebanks, germination, information handling, regeneration and multiplication, as well as descriptor lists. FAO Code of Deals with the etiquette of Adopted by FAO Conference in 1993 Conduct for collecting and transfer of PGRFA Plant Germplasm Not legally binding Collecting and Has provisions on collectors’ Transfer permits, responsibilities of Note: both the ITPGRFA and the CBD collectors, sponsors, curators and have provisions that add to or modify the users, as well as on reporting, guidance provided by the Code. monitoring and evaluating observance of the Code. CGIAR policies/ Policy on steps to be taken to Not legally binding instruments implement the MTA (pertains only to germplasm designated under Apply only to the CGIAR the agreements with FAO) Note: some of the policies and Guidelines for germplasm instruments are related to the FAO– acquisition CGIAR agreements and specify actions that must be taken by centres to meet Guidelines for designation these contractual obligations. With the of accessions under the FAO coming into force of the International agreements Treaty on PGRFA, some of these will need to be modifi ed (e.g. the MTA), while some Model MTA for non-plant genetic will become inoperable (e.g. guidelines for materials designation).
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 11
CGIAR policies/ Guidelines for acquisition and instruments (cont.) transfer of germplasm: micro- organism, animal and aquatic and marine
Ethical principles relating to genetic resources
Guiding principles on intellectual property rights
Principles involving centre interaction with the private sector
Position statements on biotechnology, the FAO–CGIAR agreements, “genetic use restriction technologies,” and on the need to resolve certain issues concerning IPRs and genetic resources. a Though contractual provisions or confl ict of laws in contractual disputes may cause de facto territorial effect.
SUSAN BRAGDON (EDITOR) 12 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
II. History and development
“Behind the politics and profi ts is a history regime there was no recourse in inter na tion al which begins with the hunters and gatherers law for the use of the resource as a source of of twelve thousand years ago and runs to the information once the resource left the source gene-splicers of today.”1 State’s jurisdiction.4 Recently, however, tech- nolog i cal advances—particularly with mo- The evolution of law and policy lec u lar biology and ge net ic engineering—have Legal regimes evolve over time in response to led to an ability to de fi ne and capture eco nom ic changing situations and needs. These changes value in the genetic resources as a source of are often catalyzed by scientifi c breakthroughs information. The laws and policies established and technological advances. In the history of in essence by phys ical might a few thousand law there is also a close relationship between years ago and still largely re fl ect ed in the prac- the recognition of the economic and commer- tice of the colonial powers in the 18th and 19th cial value of a resource and the attribution and centuries have given way to more political and allocation of legal entitlements.2 diplomatic forms of con fron ta tion. Intellectual It is through the historical context that one property rights on or of relevance to genetic learns the factors and circum stanc es that have resources have been granted and their scope affected the evo lu tion of law and policy in a continues to grow. As the interest in genetic given fi eld. The struggle over issues of sov- resources has grown more diverse—trade, er eign ty, con trol and ownership of genetic environment, and de vel op ment interests all re sourc es dates back hundreds if not thou- come into play—so too has the confl ict or po- sands of years. The manifestation of that tential confl ict among differ ent legal regimes struggle in real and legal terms is a refl ec tion with an impact on these re sourc es. of the ca pabil i ties and at mosphere of the time What history teaches is that legal regimes in which the struggle took place. Growth of respond to changing circumstances and are scientifi c knowl edge and technological capac- therefore inherently unstable. In the context ity, and different interests, can catalyze of plant genetic resources, history illustrates change in le gal regimes. Legal regimes can that technological and scientific break- also be a re fl ec tion in time of the power of throughs change the nature of the confl icts various actors. In sum, legal regimes are not over rights and responsibilities and that legal stable, but dy nam ic systems. regimes governing the resources respond and It is therefore not surprising that the legal evolve accordingly. In a fi eld where so many regimes governing issues of ownership and factors interplay, PGR managers should not exchange of genetic resources have not been expect a legal regime to solve a confl ict “once static. In the world economy today, extracted and for all”. The historical con text of current natural resources are treated as commod i ties. laws, policies and con tro ver sies with regard These resources cannot be collected without to genet ic resources provides a foundation to agreement of the State under whom ju ris- under stand why things are the way they are diction the resource falls. Until recently, a no- and the opportunities and obstacles for their ta ble exception to this was plant genetic evolu tion in ways that are supportive of the re sourc es which were accessed under the the- conser va tion, sustainable use and sound o ry that the resources were part of the common man age ment of genetic re sourc es. heritage of humankind. This was partially because of the dual nature of plant genetic Historical exchange resources as both a commodity and a source of Historically, plant genetic resources were information. It is relatively easy to take or to relatively freely exchanged5 in accordance smuggle a handful of seeds or samples out of with the idea that these resources were the a country3 and under a common heritage common heritage of humankind.6 Beginning
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 13
with the Age of Exploration, explorers took the late 1960s. It began with the development discovered plant species back to their own of a new set of high-yielding varieties that countries as new foods and raw materials greatly increased agricultural production. for plant breeding.7 The movement of plant The world food supply was dramatically genetic resources between Europe and the increased and the plant breeder popularly colonies supported expansion and changed regarded as the “father of the green revolu- civilizations.8 The Great Columbian Ex- tion,” Dr Norman Borlang, was awarded the change brought the tomato to Italy, maize Nobel Peace Prize for his efforts.16 to Africa, wheat to Latin America and the The negative aspects of the Green Rev o - potato to Ireland and whole populations lu tion are now viewed by some to outweigh became dependent on exotic germplasm.9 its benefi ts. The high-yielding varieties have been referred to by their detractors as “high- “[C]ontrol over plants often meant much input” because of the high external inputs wealth and power.”10 Almost 3500 years ago, often required to maintain them. In addition, the fi rst of the Pharaohs, Queen Hatshepsut, the push toward commercially mass-produced dispatched her military in an attempt to col- varieties led to the abandonment of diverse lect valuable plants and to resolve any dif- landraces. As one commentator states “The ferenc es of opinion over ownership there technological bind of improved vari et ies is that might be at the same time.11 In colonial times, they eliminate the resource upon which they Eu ro pe an powers laid claim to various plant are based.”17 In 1967, a FAO tech nical confer- spe cies of economic im por tance such as ence proposed the creation of a global network sugar, tea, rub ber, chin cho na and indigo.12 of genebanks to store repre sen ta tive collec- Without much lasting success, they tried to tions of the main varieties of food.18 Priority enforce their owner ship, often through re- was given to preserving the landraces, many mov al, iso la tion, and defense of pro duc tion of which were immediately threatened.19 sites.13 The effects of the Green Revolution and in particular the problem of crop uniformity were Famine and the Green Revolution: experienced in very real terms in the 1970s with the 1960s and early 1970s the corn blight in the United States and the Motivated by the twin goals of research failure of Besostaja, a high-yielding wheat facilitation and conservation, national and planted almost exclusively in the Ukraine dur- international efforts to collect, evaluate and ing the harsh winter of 1971–72. Spurred by conserve PGR increased during the 1960s.14 the epidemics of the early 1970s,20 col lect ing Originally, the goal of facilitating research missions were mounted, genebanks es tab - was to be achieved by centralizing stores lished and institutions created in an atmo - of germplasm in genebanks accessible to sphere of crisis. In 1971, the FAO, the World all rather than by having them haphazardly Bank and the United Nations Development stored in various jurisdictions around the Programme founded the Consultative Group world.15 The second incentive recognized on International Agricultural Research the need to conserve the genetic information (CGIAR). The CGIAR is an association of pub- upon which the development of newer and lic and private donors that supports a network better crops depended. of 16 international research centres (IARCs) These international efforts catalyzed a each with its own governing body.21 With a dramat ic change in world agriculture. What budget of approximately US$328 mil lion per came to be known as the “Green Revolution” annum, the CGIAR oversees the larg est agri- was instigated by the public sector and with- cultural research effort in the devel op ing out the use of intellectual property rights in world. The CGIAR conserves ap proxi mate ly
SUSAN BRAGDON (EDITOR) 14 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
600 000 seed samples which may amount to as The Food and Agriculture Or ga ni za tion much as 40% of the world’s unique germplasm The Food and Agriculture Organization of in storage worldwide. There is no dispute that the United Nations responded in 1983 by the vast majority of crop germplasm held in establishing the Global System for the Con- the IARCs was col lect ed primarily from the servation and Utilization of Plant Genetic fi elds and forests of the South’s farming com- Resources. A Commission on Plant Genetic munities.22 But to whom the resources ulti- Resources was created to oversee the Global mately belong, to whom the CGIAR is System.23 The negotiation of an International accountable, and wheth er or not the CGIAR Undertaking on Plant Genetic Resources germplasm can be subject to intellectual prop- was undertaken under the auspices of the erty protection by any par ty, were topics of Commission. Governments debated the controversy and debate and these issues were ownership and control of PGR in a highly central in the ne go ti a tions for the Interna- politicized environment concerned with tional Treaty for Plant Genetic Resources for intellectual property rights being granted Food and Agriculture. As Chapter 4 describes, for plant breeders’ and national germplasm the IT has brought clarity to these issues. embargoes.24 The acrimonious debate on the access, ownership and control of PGR that The 1970s–1990s: owner ship, rights and ensued during the adoption of the IU and equity its further refi nement was dubbed the "seed Over the last 20 years or so, spurred by techno- wars" by the Wall Street Journal.25 logical advances—particularly with molecular In contrast to the position to be taken less biology and genetic engineering—apprecia- than a decade later at the CBD negotiations, tion of the monetary and non-monetary value during these negotiations, developing coun- of genetic resources has grown, leading to tries pushed and succeeded in refl ecting in increasing confl ict over rights and respon- the IU a broader refl ection of the common sibilities for these resources. The current her i tage con cept. The concept, however, was international debate on legal regimes for to apply not just to the PGR situated in devel - plant genetic resources has its origins in the oping countries but to the PGR subject to late 1970s and early 1980s when develop- plant breeders’ rights contained primarily by ing countries became concerned over the in dus try in de vel oped countries. In the res o - actions by the plant breeding industry in in- lu tion by which the IU was adopted, Member dustrialized countries to extend intellectual States recognized that “plant genetic re- property rights over "improved" varieties. sourc es are a heritage of mankind to be pre- The concern focused in particular on the served, and to be freely available for use, for inequity of continuing the historically free the benefi t of present and future gener a tions.” fl ow of germplasm which was seen as fol- The IU made clear that this open availability lowing a predominantly developing country was to apply to all PGR, including “special to industrialized country pathway. During genetic stocks” which was interpreted broad- this same period efforts to collect and con- ly to include the specially bred propri etary serve PGR in genebanks heightened and the lines of seed breeders.26 UPOV Convention (see below) was amended The initial rejection of the relatively to admit non-European members. This led recently developed plant-related intel lectual to expanded international cooperation in property rights regimes is what made the IU the recognition of plant-related intellectual contro ver sial to the seed industry and hence property rights. These events resulted in even to gov ern ments of the in dus tri al ized world. greater attention being paid to questions of Denmark, Finland, France, New Zealand, PGR ownership in various fora. Norway, Swe den, the Unit ed King dom and
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 15
the United States offi cially in di cat ed their CBD by and large came from the Ministries un will ing ness to sup port the IU.27 of Environment represented at UNEP and not In the 10 years after its adoption, the IU the Ministries of Agriculture represented at evolved through interpretive resolutions to the FAO. In general terms, the CBD’s origins refl ect the growing acceptance of the need to can be classifi ed into categories correspond- accommodate plant breeders’ rights to at tract ing to its three objectives. One major source developed country interest. Because of that was conservationist concerns that existing accommodation, the assertion of na tion al sov- international law for protection of wildlife ereign ty over PGR became the mechanism was a patchwork that covered only selected through which developing coun tries sought to issues, areas and species. They called for a correct the asymmetry of benefi ts accruing to more general agreement that would embrace developed and de velop ing countries from PGR. a broader concept of nature and its value— Three in ter pre tive resolutions were adopt ed. including the full diversity of life at the level The fi rst provided an agreed in terpre ta tion of genes, species and ecosystems—and pro- which recognized that plant breeders’ rights tect the many elements of biodiversity not were not necessarily inconsistent with the IU.28 covered by existing laws. Second, there was It also recognized Farmers’ Rights and de fi ned a move to incorporate the goal of sustainable them in a second reso lu tion as “rights arising use of biological resources into conservation from past, present and future con tribu tions of policy, recognizing the need of local people farmers in con serv ing, im prov ing and making living amidst biodiversity for sustainable available plant ge net ic resourc es, particularly development, and conversely the need to those in the cen tres of origin/diversity.”29 mobilize support for conservation by provid- The emergence of the concept of Farmers’ ing local benefi ts. Third, international debate Rights was motivated more as part of a po- on the terms for exchanging and for sharing liti cal effort to right the perceived imbalance benefi ts from plant genetic resources for use cre at ed by the growing use and expansion of in agriculture created pressure to include in plant breeders’ rights than as a legal concept the treaty obligations on these issues. Ironi- or a property right. The countries agreed that cally, some key issues relating to agrobiodi- Farmers’ Rights would be recognized through versity—such as the status of pre-CBD ex an international fund, a fund that was never situ collections and Farmers’ Rights—were operationalized. left outstanding. From the mid-1990s the Commission Those advocates for a conservation ori en - began a negotiating process to revise the IU tation to the treaty supported the view that to bring it into harmony with the Con ven tion these resources were a “common heritage of on Biological Diversity. The IT, which is dealt humankind.” The governments of the biodi- with in detail in Chapter 4, was adopted by versity “rich” countries, however, suc cess ful ly consensus in November 2001. asserted their national sovereignty over their resources from the beginning of the negotia- The Convention on Biological Diver si ty tions. The expansion of intellectual property The Convention on Biological Diversity was rights over biological resources led to the idea conceived in the 1980s , affected by the same of Farmers’ Rights and the reaf fi rma tion of climate that catalyzed the interpretive reso- sovereignty in the interpretive reso lu tions to lutions to the IU. Unlike the IU, which was the IU. The negotiators to the CBD responded negotiated under the auspices of the FAO to the same dissatisfaction with imbalance Commission, the CBD was negotiated under caused by IPRs, by reaffi rming their sovereign the leadership of the United Nations Envi- rights over their own bi olog i cal resources and ronment Programme. The negotiators for the by establishing that States have the authority
SUSAN BRAGDON (EDITOR) 16 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
to determine access to ge netic resources under consolidation of industry concerned with bio- their jurisdiction. industrial products. It has also brought new The issues of sovereignty and re spon si - challenges to existing IP regimes. Driven by bil i ty were most graphically displayed in the private sector, the trend in industrialized discus sions surrounding the questions of ac- countries has been toward the expansion of cess to genetic resources and access to tech- the scope and/or application of patents and nolo gy. The provisions on access affect the plant breeders’ rights to biomaterials. The economic interests of all countries because all last 20 years have been characterized by are in ter de pen dent when it comes to PGRFA the increasing consolidation of industry in- whether it serves as a resource base for the volved with bioindustrial products. By 1996, life scienc es and associated industry and/or the world’s top 10 agrochemical corporations under pins local food security. The assertions accounted for 82% of global agrochemical of sover eign ty are most visible in Article 15 sales; the top 10 seed companies controlled Access to Genetic Resources. Article 15 ulti- approximately 40% of the commercial seed mately be came a balancing act between tra- market; the top 10 pharmaceutical companies ditional no tions of sovereignty and the desire accounted for 36% of global drug sales.32 to ensure that access not become so cumber- Many fi rms are dominant actors in all of these some so as to make it effectively impossible. categories.33 Figures disaggregated by crop Despite its recognition elsewhere of a com- show the concentration to be even higher. mon concern for biodiversity loss, the Con- Both fi rm consolidation and IP expansion vention’s provi sions on access to genetic enhance market power. resources reaffi rm national sovereignty over Mirroring larger trends in globalization these natural resourc es and hence national and consolidation of world markets, many authority to regu late access to genetic re- private sector interests, national gov ernments sources under a state’s jurisdiction. and intergovernmental organizations are The issue of IPR and biodiversity was also making concerted efforts to “harmonize” very controversial during the negotiations for IPRs—to gain some semblance of cohesion in the CBD. Article 16 Access to and Transfer of a fi eld that is in fl ux. The TRIPS Agreement Technology has the only explicit reference to and the evolution of the International Union intellectual property rights. Perhaps as a for the Protection of New Varieties of Plants testi mo ny to its ambiguity, the biotechnology (UPOV) refl ect these efforts. industry has worried that the protection is The TRIPS Agreement is innovative from too weak30 while some civil society orga ni z- both a trade and intellectual property per- ations claim the language is too strong. The spective. From the trade perspective, the fi nal paragraph of that Article makes clear TRIPS Agreement embodies the relatively that the negotiators of the treaty were unable novel and counterintuitive notion that trade to reach consensus on the role of IPRs in the restrictions, such as embargoes on “counter- conservation and use of biodiversity. The gist feit” goods that imitate copyrighted or trade- of that provision is that Parties are to make marked prod ucts, are necessary to promote sure that IPRs are supportive of the Treaty’s trade liberalization and the lack of IPRS (which objectives.31 can create monop o ly rights) is a restriction on trade.34 Intel lec tu al property had previ- Intellectual Property Rights: national and ously been seen as a domestic policy to be in ter na tion al trends tailored to fi t a country’s level of development The application of modern biotechnologies and techno log i cal goals, not as a matter of to biomaterials has brought new economic trade policy. One practical reason for this opportunities and the growth and subsequent change is that developed countries, such as
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 17
the United States, wished to add intellectual Until recently, WIPO tended to avoid ad- property (IP) to the issues on the table in the dressing issues relating to indigenous or Uruguay Round in order to achieve negotiat- tra di tion al knowledge or to genetic resources. ing gains in their goals through trade-offs For example, WIPO rarely sent repre sen t- with other goals of interest to developing atives to meetings of the CBD or FAO Com- countries such as reductions in barriers to mission on Plant Genetic Resources for Food textile imports. The United States had previ- and Ag ricul ture. This has been changing over ously had little success in gaining its IP goals the last fi ve or so years as the member States within the World Intellectual Property Rights recog nize the challenge of developing na- Or ga ni za tion (WIPO, see discussion below) tional leg is la tion to implement the far-reach- where such trade-offs were impossible. ing require ments of TRIPS including the need 37 The original impetus for creating UPOV for tech ni cal assistance, and the potential came from three organizations: a commercial role that WIPO can play in broadening the plant breeders’ trade association formed to debate on IPR and relating it more clearly promote plant variety protection, an or ga - with equity issues. Dr Kamil Idris, appointed niza tion with a mandate to promote indus- in fall 1997 as the organization’s fi rst new trial patents, and the International Chamber Director Gen er al in 25 years, has signalled an of Commerce. Six countries from Western openness to exploring how WIPO can con- Europe founded UPOV.35 As discussed in more tribute its tech ni cal expertise and resources to the ex plo ra tion of these issues. In March detail in Chapter 7, UPOV encourages the 1998, the WIPO General Assembly approved adoption of sui generis laws for protecting new a reinvigorated programme for the Global plant varieties by creating its own distinct International Proper ty Issues Division that system outside of patent law. The growth of would address biodiversity, human rights biotechnology and the possibility of formal and indigenous rights issues through activi- patent coverage created the pressure leading ties such as re search, publication and consul- to the 1991 revision. What is important to note tations. WIPO has also established an here is the trend in the revision of UPOV— Intergovernmental Committee on Intellec- there are four versions, only the most recent tual Property Rights, Genetic Resources, of which is open to new members—is toward Traditional Knowledge and Folklore. a strengthening of the rights granted. Given the rapid pace of technological ad- Developments within WIPO, an in ter gov - vance ments in genetics and biology, it is not ern men tal organization established in 1967 surprising that biological subject matter chal- to promote intellectual property rights world- lenges the legal parameters of ownership and wide, can be understood only in relation to control. Scientists are creating artifi cial human these global trends. WIPO was essentially chromosomes, sequencing the entire ge nomes side lined for what was probably the single of living organisms, and cloning mam mals to biggest step in strengthening international produce human proteins in their milk. Society IPR standards, the negotiation of the TRIPS is struggling with the social, ethical and legal Agreement. This was in large part due to a implications of humankind’s abil i ty to control deliberate move by IPR proponents who the genetic blueprint of life. Opin ions differ antic i pat ed making greater gains on IPR sharply on the implications of new biotech- through negotiated trade-offs within the nologies, but nearly everyone agrees that ad- Uruguay Round, and also sought to strength- vances in technology are taking place at a rate en enforce ment of IPR standards by making far faster than social policies can be devised to it possible to enforce them through the WTO guide them, or legal systems can evolve to dispute-settlement procedures.36 address them. As Chapters 7 and 8 dis cuss ing
SUSAN BRAGDON (EDITOR) 18 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
the relevant provisions of TRIPS and UPOV 289. There was, however, no recourse when PGR and Chapter 10 on the development and im- was taken. (Klaus Bosselmann. 1996. Plant and provement of genetic resources illus trate, Politics: The International Legal Regime Con- cerning Biotechnology and Biodiversity. Colo. J. whether the subject is plant breeders’ rights Intl Envtl Law & Policy 7, p. 121.) or plant and animal patenting, there is little 6 Cooper, David. 1993. The International Under- consensus on the potential impacts of intel- taking on Plant Genetic Resources. RECIEL 2:2, lectual property on biodiversity, food se cu ri ty pp. 158-166; Harold J. Bordwin. 1985. The Legal and development. Despite concerted efforts to and Political Implications of the International achieve harmony and consistency across na- Undertaking on Plant Genetic Resources, Ecol- ogy L.Q. 12:1053. tional and regional borders, intel lec tu al prop- 7 Odek, James O. 1999. Bio-piracy: creating propri- erty as it applies to biomaterials continues to etary rights in plant genetic resources. J. Intell. be controversial and char acter ized by confu- Prop. Law 2:141. It was with the advent of the sion and uncertainty. “Seed Wars” in the 1980s and the negotiation of the Convention on Biological Diversity that de- veloping countries made clear that this practice was not acceptable and that legal mechanisms to Endnotes formally support this position were sought. 1 Fowler, Cary and Pat Mooney. 1990. Shattering. 8 Kloppenburg, Jack R. Jr. 1988. First the Seed. The Food, Politics, and the Loss of Genetic Diversity. Political Economy of Plant Biotechnology 1492- Univ. of Arizona Press. 2000, pp. 153-157. Cambridge University Press, 2 Cottier, Thomas. 1998. The protection of genetic Cambridge, UK. resources and traditional knowledge: towards 9 Ibid. citing Rebecca Margulies. 1993. Note, more specifi c rights and obligations in world Protecting biodiversity: recognizing intellectual trade law. J. Interl Econ. Law 555-582. property rights in plant genetic resources. Mich. 3 Thomas Jefferson reported smuggling upland J. Intl. Law 14:322–356. The potato, native to the rice seed out of Italy in the linings of his coat Andean people, was introduced to Ireland from in an attempt to introduce it and encourage Central Europe. Unfortunately, the Irish did not its cultivation in South Carolina. According to import enough genetic diversity to ensure crop Mr Jefferson’s accounts, the farmers of South stability during the great potato famine of the Carolina rejected the Italian seed believing their mid-1800s. The introduction of the potato facili- rice to be superior. See Cary Fowler. 1994. Un- tated a three-fold increase of the Irish population natural Selection: Technology, Politics and Plant to 8 million people. When a previously unknown Evolution. Gordon and Breach Science Publish- disease caused by a fungus wiped out the potato ers, Switzerland, p. 14 (citing Thomas Jefferson. crop within 10 years, 2 million Irish people had 1944. Thomas Jefferson: Garden Book, edited by died, 2 million had emigrated and 4 million Edwin Morris Betts. The American Philosophical remained, many living in terrible poverty. Society, Philadelphia, pp. 124–131). 10 Busch, Lawrence, W.B. Lacy, J. Burkhardt and 4 So in 1755 when Pierre Poivre smuggled pep- L.R. Lacy. 1991. Plants, power and profi t: social, per and cinnamon to Ile de France and broke economic and ethical consequences of the new the Dutch spice monopoly, he found himself biotechnologies. Blackwells, Cambridge, MA, ennobled by the French king. Brockway, Lucile USA. See also Brockway, Lucile H. 1988. Plant H. 1988. Plant science and colonial expan- science and colonial expansion: the botanical sion: the botanical chess game. P. 54 in Seeds chess game. P. 49 in Seeds and Sovereignty: The and Sovereignty: The Use and Control of Plant Use and Control of Plant Genetic Resources Genetic Resources (J.R. Kloppenburg, ed.). Duke (J.R. Kloppenburg, ed.). Duke University Press, University Press, London. London. 5 It should be noted that there are historical ex- 11 Farney, Dennis. 1980. “Meet the men who risked amples of specifi c governmental rules restricting their lives to fi nd new plants.” Smithsonian, the export of certain specialized and industrial June, 1980. breeding materials such as pepper from India, 12 Crosby, Alfred. 1986. Ecological Imperialism: oil palm from Malaysia, coffee from Ethiopia and The Biological Expansion of Europe, 900-1900. tea from Sri Lanka. See Agricultural Crop Issues Cambridge University Press, Cambridge, UK. and Policies. Chapter on Proprietary Rights, page 13 Ibid.
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14 Plucknett, D.L. et al. 1983. Crop germplasm and the progress made in protecting American intel- developing countries. Science 163:220. lectual property rights” Hamilton, Neil. 1993. 15 Tilford, David S. 1998. Saving the blueprints: the Who owns dinner: evolving legal mechanisms international legal regime for plant resources. 30 for ownership of plant genetic resources. 28 Tulsa Case W. Res. J. Intl 373:389. L.J. 587–646. supra at 623 (citing Steve Usd. 1992. 16 Ibid., p. 391. Biotech Industry Played Key Role in U.S. Refusal 17 Kloppenburg, Jack R. Jr. 1988. First the Seed. to Sign BioConvention, Diversity 8(2):8.) President The Political Economy of Plant Biotechnology Clinton signed the treaty the day before it closed 1492-2000, pp. 162. Cambridge University Press, for signature with the support of the biotechnol- Cambridge, UK. ogy industry with the promise that it would be 18 Frankel, O.H. 1986. Genetic resources: The sent to the Senate to consider ratifi cation with an founding years. II. The movement’s constituent interpretive statement alleviating their intellectual assembly. Diversity 9:30-32. property concerns. 19 Wilkes, H. Garrison. 1988. Plant genetic resources 31 Quote Article 16.5. over ten thousand years: from a handful of seed 32 RAFI. 1997. Life Industry. RAFI Communique, to the crop-specifi c mega-genebanks. Pp. 67-79 in November/December 1997. Seeds and Sovereignty: The Use and Control of 33 Examples of major life industry fi rms include Plant Genetic Resources (Jack R. Kloppenburg, Sygenta, Novartis, Monsanto and DuPont. ed.). Duke University Press, London. 34 Downes, David. 1997. Using Intellectual Property 20 Crop uniformity was one factor in the epidem- as a Tool to Protect Traditional Knowledge: Rec- ics. Other factors also were important, including, ommendations for Next Steps: CIEL Discussion for example, the international oil crisis and the Paper prepared for the Convention on Biological Sahelian drought. Diversity Workshop on Traditional Knowledge, 21 Four of the centres were established prior to the Madrid, November 1997. CIEL, Washington. formation of the CGIAR. Discussion draft, p. 6. 22 Bragdon, Susan H. and David Downes. 1998. 35 Fowler, Cary. 1994. Unnatural Selection: Technol- Recent policy trends and developments related ogy, Politics and Plant Evolution, pp. 104. Gor- to the conservation, use and development of don and Breach Science Publishers, Switzerland. genetic resources. Issues in Genetic Resources 36 Jackson, John H. 1997. The World Trading Sys- No. 7, p 17. International Plant Genetic Resources tem: Law and Policy of International Economic Institute, Rome, Italy. Relations. 2nd edition. The MIT Press, Cam- 23 As of 23 August 1999, the Commission had 160 bridge, MA. state members plus the European Community. 37 WIPO, unlike the WTO, has decades of experi- 24 Mooney, P.R. 1983. The law of the seed: another ence and considerable staff and other resources development and plant genetic resources. Devel- to support provision of technical assistance on opment Dialogue I-2:7-172. national IP laws and institutions. Thus, WTO and 25 Kloppenburg, Jack R. Jr and Daniel Lee Kleinman. WIPO have signed an agreement committing the 1988. Plant genetic resources: the common bowl. two institutions to greater cooperation on mat- Pp. 1–2 in Seeds and Sovereignty: The Use and ters such as information-sharing and technical Control of Plant Genetic Resources (Jack R. Klop- assistance. penburg, ed.). Duke University Press, London. 26 International Undertaking, supra Note 7, Article 2. 27 Tilford, see Endnote 15, supra at no. 251. 28 FAO Conference Resolution C4/89, 1989. 29 FAO Conference Resolution C5/89, 1989. 30 The Industrial Biotechnology Association (IBA) and the Association of Biotechnology Companies (ABC) to oppose US approval of the Convention. Reginald Rhein, Biological Diversity Conven- tion Would Limit Patent Rights, Says IBA, 12 BIOTECH. NEWSWATCH 1 (18 May 1992). The President and CEO of Genetech, G. Kirk Rabe, wrote to President Bush before his departure to Rio where the CBD would be signed saying “the proposed Convention runs a chance of eroding
SUSAN BRAGDON (EDITOR) 20 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
III. The FAO Global System for the Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture
The FAO Commission on Genet ic Throughout the years, the Commission Resourc es for Food and Agriculture has accordingly coordinated, overseen and The 1983, the FAO Conference established the monitored the development of a Global Sys- FAO Commission on Plant Genetic Resources, tem for the Conservation and Sustainable which was the fi rst permanent intergovern- Utilization of Plant Genetic Resources for mental forum in the United Nations system to Food and Agriculture. The objectives of the deal with agricultural biological diversity. In Global System are to ensure the safe con ser- 1995, its mandate was broadened to cover all vation and promote the availability and components of biological diversity of interest sustain able utilization of plant genetic re- to food and agriculture, when it became the sourc es, for present and future generations, Commission on Genetic Resources for Food by provid ing a fl exible framework for sharing and Agriculture. At present, 160 countries the benefi ts and burdens. The System covers and the European Union are members of the both the conservation of plant genetic re- Commission, which usually holds a regular sources (ex situ and in situ, including on-farm) meeting at two-year intervals, and extraor- and their sustainable utilization. The Global dinary sessions as required. The Commis- System contains a number of elements, as sion provides a forum for governments to shown in Figure 3.1. discuss matters and negotiate agreements on all matters of common interest related The International Under tak ing on to agrobiodiversity. It aims to reach interna- Plant Genetic Resourc es for Food and tional consensus on matters of global interest. Ag ri cul ture The Commission reviews and advises FAO The keystone of the Global System has been on its policy, programmes and activities the International Undertaking on Plant related to the conservation, sustainable use Genetic Resources for Food and Agriculture, and equitable sharing of benefi ts derived which was adopted by a resolution of the 1983 from the utilization of genetic resources of FAO Conference, and interpreted and com- relevance to food and agriculture. Relevant plemented by three further Conference reso- technical assistance agencies, intergovern- lutions, in 1989 and 1991. The International mental organizations, dev elop ment banks, Undertaking was the fi rst comprehensive non-governmental organizations and private international agreement dealing with plant foundations also attend the sessions of the genetic resources for food and agriculture. It Commission, and report to it on their pro- promotes international harmony in matters grammes and activities on genetic resources regarding PGRFA. One hundred and thirteen for food and agriculture. countries have adhered to the Undertaking, which seeks to “ensure that plant genetic Development of the FAO Global System resources of economic and/or social interest, The Commission’s terms of reference spec- particularly for agriculture, will be explored, ify that it will “recommend such measures preserved, evaluated and made available for as may be necessary or desirable to en sure plant breeding and scientifi c purposes”. the development, as appropriate, of a com- In 1992, Agenda 21 called for the strength- prehensive global system or systems on en ing of the FAO Global System on Plant genetic resources of relevance to food and Genet ic Resources, and its adjustment in line agriculture and to monitor the operation of with the outcome of negotiations on the its/their components, in harmony, where ap- Con ven tion on Biological Diversity. In 1993, plicable, with the Convention on Bi olog i cal the FAO Conference accordingly requested Diversity and other relevant in ter na tion al FAO to provide a forum in the FAO Com- instruments”.1 mission on Genetic Resources for Food and
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International Agreement Undertaking Action Codes of Conduct Funding and Strategy Guidelines
Commission on PGRFA Genetic Resources Global Plan Networks for Food of Action and Agriculture
Report on Network of ex Situ the State World of the World's Collections Information and PGRFA Cooperation Early Warning System Information
Fig. 3.1. The Global System for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture.
Agri cul ture, for negotiation among govern- continued until, on 3 November 2001, the ments, for: Thirty-first FAO Conference adopted the • the revision of the International Un der - International Treaty on Plant Genetic Resourc- tak ing on Plant Genetic Resources, in har- es for Food and Agriculture, by unanimity.2 mony with the Convention on Biological The International Treaty will enter into Diversity force after ratifi cation by 40 countries, when • consideration of the issue of access on a Governing Body, composed of all Con- mutually agreed terms to plant genetic tract ing Parties to the Treaty, will be con- re sourc es, including ex situ collections vened. Until then, the FAO Commission on not addressed by the Convention on Bio - Genetic Resources for Food and Agriculture log i cal Diversity will act as the Interim Committee for the • the issue of the realization of Farmers’ Treaty, and will oversee a number of tasks to Rights. be un der tak en in the interim period. The International Treaty will then super- Adoption of the International Treaty on sede the International Undertaking, including Plant Genetic Resources for Food and in relation to the ex situ collections of plant Ag ri cul ture genetic resources for food and agriculture held The negotiations for the revision of the in trust by the International Agricultural Undertaking started, in November 1994, at Re search Centres of the Consultative Group the fi rst extraordinary session of the Com- on International Agricultural Research. Until mission on Plant Genetic Resources. They then, the International Undertaking, under the
SUSAN BRAGDON (EDITOR) 22 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
The International Treaty on Plant Genetic Resources for Food and Agriculture: Is at the cross-roads between agriculture, trade and the envi ron ment. It provides agri - cul ture with a new, legally binding in stru ment on a par with trade and en vi ron men tal in stru ments, and promotes har mo ny and synergy across the sectors.
Covers all plant genetic resources relevant to food and ag ricul ture. Its objectives are the conservation and sustainable use of plant genetic resources and the fair and equi- table ben e fi ts arising out of their use, in harmony with the Convention on Bi o log i cal Di ver si ty, for sus tain able ag ri cul ture and food security. It aims at ensuring that the inher it ed capital they represent is conserved, and continues to supply the fl ow of services on which food se cu ri ty and de vel op ment depend.
Establishes a Multilateral System of Ac cess and Benefi t-shar ing for Plant Genetic Re- sourc es, for an agreed list of crops, es tab lished on the basis of interdependence and food security. The list cur rent ly covers 35 food crops, and 29 forage genera, rep re sent ing more than 80% of the world’s cal o rie intake. The genetic re sourc es of these crops are pooled. The country of origin cannot therefore be the basis of benefi t-shar ing, which means that the benefi ts must also be shared on a multilateral, rather than on a bilateral basis.
Provides for benefi t-sharing through in for ma tion exchange, tech nol o gy transfer, ca- pac i ty-building, and the mandatory shar ing of the monetary and other benefi ts of the com mer cial iza tion of prod ucts in cor po rat ing material accessed from the Mul ti lat er al Sys tem. The pri ma ry focus is on farm ers in the developing world, who con serve and sustainably utilize plant ge net ic re sourc es for food and ag ri cul ture.
Includes a Funding Strategy to mobilize funding for priority ac tivi ties, plans and programmes, in particular in developing coun tries and countries with economies in tran si tion, taking into ac count the Global Plan of Action adopted in Leipzig in 1996.
Provides for the realization of Farmers’ Rights by national gov ern ments through: - the protection of relevant traditional knowledge - equitable participation in sharing benefi ts derived from the use of PGRFA - participation in national decision-making related to their con ser va tion and sus- tain able use.
aegis of the FAO Commission on Genetic Undertaking, because of uncertainty regard- Resources for Food and Agriculture, is the ing the legal situation of ex situ germplasm governing agreement. in genebanks, and of the lack of appropriate agreements to ensure its safe conservation. The International Network of ex situ Moreover, the provisions regarding access collec tions under the auspices of FAO to genetic resources in the Convention on The Commission called for the develop- Biological Diversity (Article 15) do not ap- ment of the International Network in 1989, ply to ex situ collections assembled prior to in line with Article 7.1(a) of the International its entry into force.
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Twelve International Agricultural distributed under the terms of another Ma teri al Research Centres of the Consultative Group Transfer Agreement agreed by the Govern ing on International Agricultural Research Body. This should help reduce in terna tion al accord ing ly signed agreements with FAO in tensions around the transfer and use of plant 1994, placing most of their collections (some genetic resources for food and ag ricul ture, and 500 000 accessions) in the International Net- facilitate collecting and ex change. work. Through these agreements, the Centres recognized the “intergovernmental au thor i ty International Plant Genetic Resources of FAO and its Commission in setting pol i cies Networks for the International Network”. They ac cept, The Commission has recognized that crop- in particular, to hold designated germplasm related networks are a useful approach “in trust for the benefi t of the in ter na tion al to integrating activities on plant genetic community” and “not to claim ownership, or resources within the Global System, and to seek intellectual property rights over the strengthening practical linkages between designated germplasm and related informa- the conservation and sustainable utilization tion”. In releasing these materials, the Centres of crop genetic resources. FAO has therefore pass the same obligations on to the recipient, continued to support the establishment of and all further recipients, by means of a stan- global and regional crop-related networks, dard Material Transfer Agreement approved covering a large variety of cultivated species, by the Commission. in close collaboration with relevant scientifi c The regional collections of the In ter na tion al organizations. In recent years, the complemen- Coconut Genetic Resources Network (CO- tarity of in situ and ex situ strategies has been GENT), held by the governments of In dia, recognized. The Commission has therefore Indonesia and Côte d’Ivoire, have also been called for the establishment of networks of in brought into the Network since October 1998, situ conservation areas, which would include through agreements signed between FAO, “on-farm” conservation of crops and in situ the host countries on behalf of their re spec tive conservation of crop wild relatives. regions, and the International Plant Genetic The International Treaty encourages co op- Resources Institute, on behalf of CO GENT. era tion in international plant genetic The Commission noted that the fi nal form re sourc es for food and agriculture networks, of such agreements would depend upon the on the basis of existing arrangements, so as to outcome of the negotiations for the revision of achieve as complete coverage as possible of the International Undertaking. The In terna- plant genetic resources for food and ag ricul ture. tional Treaty, in fact, specifi cally rec og niz es the It states that the Contracting Parties will there- importance to the Treaty of the ex situ col lec - fore encourage all relevant institutions, includ- tions of plant genetic resources for food and ing governmental, private, non-govern men tal, agriculture held in trust by the IARCs. Article research, breeding and other in sti tu tions, to 15 provides for agreements to be signed with participate in international net works. them, and other rel e vant international in sti - tu tions, with regard to their ex situ col lec tions. The State of the World’s Plant Genet ic Plant genetic resources for food and ag ri cul ture Resources for Food and Agri cul ture in the Treaty’s Multilateral System will be and The Global Plan of Action for the distributed under the terms of a standard Ma- Conser vation and Sustainable Utilization terial Transfer Agreement to be agreed by the of Plant Genetic Resources for Food and Gov ern ing Body. Other plant genetic re sourc es Ag ri cul ture for food and agriculture, collected before the Two important policy document were entry into force of the Treaty, will be produced in the context of the Leipzig
SUSAN BRAGDON (EDITOR) 24 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
International Technical Conference on Plant fi nancial needs for ensuring con ser va tion and Genetic Resources, which FAO convened promoting sustainable use of plant genetic in 1996: the fi rst Report on the State of the resources, with programmes and activities World’s Plant Genetic Resources for Food aimed at filling in gaps, overcom ing con- and Agriculture; and the rolling Global Plan straints and facing emergency sit u a tions. of Action for the Conservation and Sustain- The Plan was developed under the guid- able Utilization of Plant Genetic Resources ance of the Commission, through a country- for Food and Agriculture. driven preparatory process that included 12 In 1989, the Commission recommended regional and subregional meetings at which the preparation of a periodic Report on the governments discussed regional problems and State of the World’s Plant Genetic Resources, opportunities and made recom men da tions for which would analyze the current plant ge- the Plan. This helped catalyze the formation net ic resources situation, and describe ac- and strengthening of national programmes tiv i ties and programmes being carried out by and regional networks and promot ed scien- re gional, international and non-governmen- tifi c cooperation. The Plan com pris es 20 prior- tal organizations, with the aim of identifying ity activities, covering in situ and ex situ gaps, constraints and emergency situations. conservation, plant genetic resourc es utiliza- On this basis, the Commission could rec- tion, and institution and ca pac i ty-building. ommend priorities and ways of harmonizing The implementation of the rolling Plan is the overall effort. The Commission also monitored by the Commission on Genetic agreed that the needs, emergencies and pri- Resources for Food and Ag ri cul ture. orities identi fi ed in the Report on the State of The Global Plan of Action was formally the World’s Plant Genetic Resources would adopted by 150 countries at the Leipzig In ter - provide the basis for the operation and peri- nation al Technical Conference. In adopting the odic updating of a Global Plan of Action. Plan, Governments also adopted the Leipzig In preparing for the Leipzig International Declaration, through which they com mit ted Technical Conference, 158 governments pre- themselves to taking the nec essary steps to pared country reports, assessing the status of implement the Global Plan of Action. their plant genetic resources, and their ca- The International Treaty acknowledges paci ty to conserve and utilize them: the fi rst that the conservation, exploration, col lec tion, Re port on the State of the World’s Plant Ge- characterization, evaluation and documen- netic Resources is largely based on this in for - tation of plant genetic resourc es for food and ma tion. The Report assesses the state of plant agriculture are essential in meeting the goals genetic diversity and capacities at local, na- of the Rome Declaration on World Food tional, regional and global levels, for in situ Security and the World Food Sum mit Plan management, ex situ conservation and sus- of Action, and for sustainable agricultural tainable utilization. It identifi es current gaps development for this and future generations, and needs and priorities, which are ad dressed and that the capacity of de vel op ing countries in the Global Plan of Action. The Inter na tion al and countries with econo mies in transition Technical Conference welcomed the Report to undertake such tasks needs urgently to as the fi rst comprehensive world wide assess- be reinforced. It notes that the Global Plan ment of the state of plant genetic resources of Action is an in ter na tion al ly agreed frame- conservation and use. work for such activities, and provides that In 1991, the Commission also requested the Contracting Parties should pro mote the ef- preparation of a rolling Global Plan of Action fective implementation of the rolling Global on Plant Genetic Resources for Food and Ag- Plan of Action, including through national riculture, in order to identify the tech ni cal and actions and international co oper a tion to
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provide a coherent framework for ca pac i ty- product that is a plant genetic resource and building, technology transfer and ex change that incorporates material accessed from the of information. Multilateral System, when this product is not available without restriction to others for Funding Strategy fur ther research and breeding. It is voluntary The International Treaty makes provision when it is. At its fi rst meeting, the Governing for a Funding Strategy, to enhance the avail- Body will determine the level, form and man- ability, transparency, effi ciency and effective- ner of the payment, in line with commercial ness of the provision of fi nancial resources practice. It may establish different levels of to implement activities under the Treaty. An payment for various categories of recipients appropriate mechanism, such as a trust ac- commercializing such products, and from count, will be established for receiving and time to time review the levels of payment. utilizing fi nancial resources for purposes of Priority will be given to the im ple men t- implementing the Treaty. a tion of agreed plans and programmes for In order to mobilize funding for priority farm ers in developing countries, especially activities, plans and programmes, in par- in least-devel oped countries, and in countries tic u lar in de vel op ing countries and countries with economies in transition, who conserve with economies in transition, and taking the and sustainably utilize plant genetic resourc es Global Plan of Action into ac count, the Gov- for food and agriculture. ern ing Body shall periodically establish a target for such funding. The Contracting Par- The World Information and Early ties shall take the necessary and appropriate Warn ing System on PGR measures within the Governing Bodies of Under the guidance of the Commission, rele vant international mechanisms, funds FAO has established the World Information and bodies to ensure due pri or i ty and atten- and Early Warning System, which collects, tion to the effec tive allocation of predictable disseminates and facilitates the exchange and agreed resources for the implementation of information that governments provide of plans and programmes under the Treaty. on plant genetic resources collections and Developed country Parties provide fi nancial related technologies. This is an important resources for the implementation of the tool for the periodic updating of the Report Treaty through bilateral and regional and on the State of the World’s Plant Genetic multilateral chan nels, which developing Resources. Its databases contain data on: country Parties and those with economies in the location of over 5.5 million plant genetic transition may avail themselves of. resources accessions, in some 1410 ex situ col- Also part of the fi nancial strategy are the lections around the world; the structure and monetary benefits arising from the com- activities of national plant genetic resources mercial use of plant genetic resources for food programmes in almost all countries; some and agriculture from the Treaty’s Multi lat er al 8000 seed-supplying institutions around System of Facilitated Access and Benefi t-shar- the world; commercial crop varieties, and ing. Someone who obtains a commercial relevant non-FAO databases and how to profi t from the use of these genetic resources obtain information from them. An Early is obliged, by a standard Material Transfer Warning Mechanism is being developed to Agreement, to share these profi ts fairly and draw rapid attention to hazards threatening equitably, and pay an equitable royalty to a the operation of ex situ collections, and to the Fund overseen by the Treaty’s Governing danger of the extinction of plant species and Body, as part of its funding strategy. Payment the loss of the genetic diversity of crops for is mandatory on the commercialization of a food and agriculture.
SUSAN BRAGDON (EDITOR) 26 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
The International Treaty also provides for the conservation and sustainable use of genetic the development and strengthening of a resources, in particular with the Conference of global information system to facilitate the the Parties to the Convention on Biological Di- versity and the UN Commission on Sustainable exchange of information, based on existing Development, and will seek to develop appropri- in for ma tion systems, on scientifi c, technical ate mechanisms for cooperation and coordina- and environmental matters related to plant tion in consultation with such bodies. genetic resources for food and agriculture. 2 With two abstentions: the USA and Japan. This will also provide early warning about hazards that threaten the effi cient mainte - nance of PGRFA.
Codes of Conduct and Guidelines A number of Codes of Conduct and Guide- lines have been negotiated under the aegis of the Commission on Genetic Resources for Food and Agriculture. The International Code of Conduct for Plant Germplasm Collecting and Transfer was ad- opted by the FAO Conference in 1993. It provides a guide which governments may use until they develop their own national regulations. A draft Code of Conduct for Biotechnology as it relates to Genetic Resources for Food and Ag- ri cul ture was prepared at the request of the Commis sion and considered at its Fifth Ses- sion in 1993. The draft Code includes provi- sions to maximize the positive effects of biotech nol o gy and minimize potentially negative ef fects of agrobiotechnologies. The Ninth Regular session of the Commission, in late 2002, will begin consideration of the draft. FAO and the International Plant Genetic Resources Institute have, since 1989, jointly published Technical Guidelines for the Safe Move- ment of Plant Germplasm. The Com mis sion has also agreed on a set of Genebank stan dards, jointly prepared by FAO and the In terna tion al Plant Genetic Resources Institute.
Endnotes 1 Its terms of reference also state that the Commis- sion "will facilitate and oversee cooperation be- tween FAO and other international governmen- tal and non-governmental bodies dealing with
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IV. The International Treaty on Plant Genetic Resources for Food and Agriculture
Relevance to Genetic Resources comes into force, it will legally bind only professionals those countries that have ratifi ed it, plus those “Access”, “exchange” and “benefi t-sharing” international institutions (such as CGIAR are important topics today to anyone con- centres) that have entered into formal agree- cerned with management of plant genetic ments with the Treaty’s Governing Body to resources for food and agriculture. As this as so ci ate them selves with the Treaty. manual dem on strates, these topics are com- What are the major changes the Treaty plex and are the subject of multiple treaties, with bring? national laws, regulations and policy. • The Treaty should help reduce in ter na - In the future, the International Treaty on tion al tensions around the transfer and Plant Genetic Resources for Food and Agri - use of plant genetic resources for food culture (ITPGRFA) will certainly be the most and ag ri cul ture (PGRFA), and thus should important international agreement in this fa cil i tate collecting and exchange. field. Consequently, this manual devotes • Access to PGRFA of crops that are consid er able attention to the Treaty, how it in clud ed within the Trea ty’s multilat- will work, and what its implications are for eral system should become routine and fu ture management and policy-making. easy—“fa cil i tat ed” in the lan guage of “Access”, “exchange” and “benefi t-shar- the Treaty. Access to materials of other ing” have also been complex and con tentious crops (includ ing soyabean, groundnut, issues for centuries, even millennia, thus the tomato, sugarcane, industrial crops and adoption of the fi rst international treaty deal- most tropical for ages, to name some of ing with these diffi cult topics has to be an the most important ex cluded crops) will historic event and one that deserves our se- likely be more diffi cult, requir ing (as it ri ous attention. does now) a specifi c agree ment with the The FAO Conference adopted the Inter - country providing the ac cess. The con- nation al Treaty on Plant Genetic Resources cept of “designated” germplasm will be for Food and Agriculture by consensus in dropped, replaced by the new distinction Novem ber 2001. The stated objectives of the between PGRFA of crops that are part of Trea ty are the “conservation and sustainable the multilateral system and those that are use of plant genetic resources for food and not. It will probably be necessary, none- agriculture and the fair and equitable shar ing theless, to identify the materials covered, of the benefi ts arising out of their use…” and par tic u lar ly those of non-multilateral The Treaty contains 35 articles and 2 an- system crops. Facil i tat ed access will be nex es. While the scope of the Treaty is com- provided to materials of crops that are in pre hen sive, covering all plant genetic the mul ti lat er al system, with the exception re sourc es for food and ag ri cul ture, readers that there will be no obligation to provide will be particularly interested in the articles materials “under de vel op ment” during that establish a multilateral system of access their period of de vel op ment (see Section and benefi t-sharing for particular crops. III. Access and B. Defi ni tion al issues). Although it has been adopted, the Treaty • Access to PGRFA that is part of the mul- will not actually come into force until 90 days ti lat er al system es tab lished by the Treaty after the 40th instrument of ratifi cation has will be provided under terms specifi ed been deposited with FAO. In most cases, in a standard “Material Transfer Agree- rat i fi ca tion requires action by a coun try’s ment” (MTA). This MTA, the wording par lia ment and/or ex ec u tive. One might of which will be agreed to by the Trea ty’s expect that for many countries this ratifi cation Governing Body, will bind the recipient process could take several years. When it of PGRFA (and subse quent recipients)
SUSAN BRAGDON (EDITOR) 28 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
to certain benefi t-shar ing ar range ments in commercialized, unless this product is particular de fi ned circum stanc es (see below made available without re stric tion for 'Ben e fi t-sharing'). further research and devel op ment. In • Farmers’ Rights, a contentious issue for effect, patenting will trigger the ben- more than a decade, is largely assigned to efi t-sharing mecha nism; plant breed- national governments for them to defi ne ers’ rights probably will not. and implement as they see fi t. Our assessment begins with Part IV of the Part IV of the Treaty is entitled “The Mul- Trea ty, which establishes the multilateral ti lat er al System of Access and Benefi t-Shar- sys tem. Following this detailed ex am i na tion ing.” Part IV contains Article 10, which of the articles on access and benefi t-sharing, es tab lish es the multilateral system as well as we will look at the scope of the Treaty (what specifi c ar ti cles on coverage, access and ben- crops and which materials it covers). Then, we efi t-shar ing. (As specifi ed in Article 15 on the will briefl y describe the remaining elements CGIAR collections, centres will also provide of the Treaty, and conclude by identifying and ob tain access to Annex I materials in ac- some of the am bi gu ities and problems con- cordance with the terms of Part IV of the tained in the Treaty. Treaty.)
The Multilateral System: access and 10.1 In their relationships with other benefi t-sharing States, the Contracting Parties recognize Overview the sovereign rights of States over their The Treaty establishes a multilateral own plant genetic resources for food and sys tem with rules for access and ben- agriculture, including that the authority efi t-sharing for genetic resources (of a to determine access to those resources defi ned list of crops) and associated rests with national governments and is in for ma tion. Access is pro vid ed to ex subject to national legislation. situ and in situ materials, other than those un der de vel op ment during the 10.2 In the exercise of their sovereign period of development. The Treaty rights, the Contracting Parties agree to does not cov er access for purposes that estab lish a multilateral system, which is are not related to food and agriculture. ef fi cient, effective and transparent, both Intellectual proper ty rights (IPRs) are to facilitate access to plant genetic re- respected. IPRs may not be claimed, sources for food and agriculture, and to however, on material “in the form share, in a fair and equitable way, the received” from the system. (Some un- benefi ts aris ing from the utilization of certain ty exists as to what that means, these re sources, on a complementary and pre cise ly.) PGRFA will be provided mutually re in forc ing basis. under the terms of a stan dard, yet- to-be-agreed Material Transfer Agree- Article 10 establishes the multilateral ment to be used by Con tracting Parties sys tem. In this article, Contracting Parties1 and CGIAR centres. Benefi t-sharing in spe cifi cal ly assert that they are exercising the form of a payment into an interna- their sover eign rights (as the Convention on tional fund at FAO will be mandatory Bi o log i cal Diversity reaffi rms that they have when genetic ma teri al from the system over their genetic resources) to establish this is used to produce a “prod uct that is a mul ti lat er al system. This article thus provides PGRFA” (e.g. a line or cul ti var) that is a link with the Convention, and makes clear
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that the rules gov ern ing access and benefi t- Article 12.2 notes that facilitated access sharing for the multilateral system will be the shall be provided to Contracting Parties, as “mutu al ly agreed terms” referred to in the well as to “legal and natural persons” under Convention. the jurisdiction of any Contracting Party. Leaving aside for the moment Article 11 This means that access will be provided to on coverage, we shall begin our detailed indi vid u als as well as to institutions or or- analy sis with Article 12 which addresses the ga ni za tions that have a “legal personality”, topic of access to PGRFA within the mul ti - such as private companies, NGOs, etc. lat er al system—to materials of crops con- Article 12.3 lays out the conditions under tained in Annex I. This article covers which facilitated access is granted. Spe cifi - materials found in both ex situ and in situ cally, it is granted for purposes that relate to conditions. food and agriculture. Access for other pur- poses (e.g. pharmaceutical, chemical) is not Access covered by this Treaty, meaning that those seeking access for such purposes will need to 12.1 The Contracting Parties agree make separate arrangements. In most cases, that facilitated access to plant genetic such access will effectively fall under the resourc es for food and agriculture under frame work of the Convention on Biological the Multilateral System, as defi ned in Diversity. Access may even be denied. Article 11, shall be in accordance with the provisions of this Treaty. 12.3(b) Access shall be accorded ex pe - ditious ly, without the need to track indi - 12.2 The Contracting Parties agree to vid u al accessions and free of charge, or, take the necessary legal or other ap pro- when a fee is charged, it shall not exceed pri ate measures to provide such access the minimal cost involved; to other Contracting Parties through the Multilateral System. To this effect, such 12.3(c) All available passport data and, access shall also be provided to legal and subject to applicable law, any other as- natural persons under the jurisdiction of so ci at ed available non-confi dential de- any Contracting Party, subject to the scriptive information, shall be made pro vi sions of Article 11.4. avail able with the plant genetic re sourc es for food and agriculture provided; 12.3 Such access shall be provided in accordance with the conditions below: 12.3(d) Recipients shall not claim any in tel lec tu al property or other rights that 12.3(a) Access shall be provided solely limit the facilitated access to the plant for the purpose of utilization and con ser - genetic resources for food and ag ri cul ture, va tion for research, breeding and train ing or their genetic parts or components, in for food and agriculture, pro vid ed that the form received from the Multilateral such purpose does not in clude chem i cal, System; pharmaceutical and/or other non-food/ feed industrial uses. In the case of mul- 12.3(e) Access to plant genetic re sourc es tiple-use crops (food and non-food), their for food and agriculture under de vel - importance for food security should be opment, including material being de- the determinant for their in clusion in the veloped by farmers, shall be at the Multilateral System and availability for discre tion of its developer, during the facilitated access. pe ri od of its development;
SUSAN BRAGDON (EDITOR) 30 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
12.3(f) Access to plant genetic re sourc es because key terms em ployed in this para- for food and agriculture pro tected by in- graph are not defi ned. tellec tu al and other property rights shall The phrase “intellectual property or other be con sis tent with relevant international rights that limit the facilitated access to the agreements, and with rel evant national plant genetic resources for food and ag ri- laws; cul ture“ can be interpreted in two ways: • that IPRs limit facilitated access and thus 12.3(g) Plant genetic resources for food no intellectual property of any type can and agriculture accessed under the Mul- be claimed, or: tilat er al System and conserved shall • that intellectual property can be taken out, con tin ue to be made available to the Mul- provided it does not limit facilitated access tilat er al System by the recipients of those (e.g. UPOV-compatible Plant Breed ers’ plant genetic resources for food and ag ri- rights could be claimed). cul ture, under the terms of this Trea ty; There is also some lack of clarity as to and whether the facilitated access that might be limited by the taking out of IPRs refers to 12.3(h) Without prejudice to the oth er lim it ing access to the original accession(s) provisions under this Article, the Con- (plus their genetic parts and components, tracting Parties agree that access to plant however defi ned) or to the product of research genetic resources for food and ag ri - and breed ing using the material received. cul ture found in in situ conditions will Perhaps the greatest difficulty is the be provid ed according to national leg is- phrase “in the form received”. Does this allow la tion or, in the absence of such legisla- IPRs to be taken out, for example, on genes tion, in ac cor dance with such standards isolat ed from the material received, because as may be set by the Governing Body. they were not received in the form of isolated genes? Or is this forbidden because the gene Paragraphs 12.3(b) through (h) specify ad- itself (provid ed no changes are made to it) ditional conditions under which access is was received from the multilateral system, provided and identify circumstances under albeit em bedded within the genetic makeup which access might be denied legitimately. of the material? Several of these paragraphs are critical to Furthermore, the issue is left open as to the workings of the multilateral system. In what is the minimum that a recip i ent has to general, these paragraphs acknowledge the do for the material to no longer be classifi ed applicability of intellectual and other prop- as being “in the form received”. Is the ad- er ty rights over the material. They call for di tion of a single 'cosmetic' gene (e.g. Contracting Parties to make available not just through transformation or conventional the genetic material, but also associated, de- back-cross ing) suffi cient? Is inclusion of an scrip tive (i.e. non-proprietary) information. essentially unaltered gene within a new Paragraph (b) specifi es that those pro- construct suffi cient? Such issues will pre- viding genetic resources need not track in di- sumably be ad dressed by the Governing vid u al accessions. Body in due course, and some, perhaps, by Paragraph (d) is a key one in trying to the Commission on Genetic Resources acting defi ne the extent to which intellectual prop- as Interim Commit tee. erty rights can be applied to material ac- Paragraph (g) specifies that materials cessed from the multilateral system. access ed should continue to remain available However it contains a number of ambigui- to the multilateral system from the recipient ties and is open to inter pre ta tion in part (as long as the recipient has them).
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Paragraph (h) confi rms that access will relevant provisions of this Treaty, and also be provided to materials found in in situ the provi sion that the recipient of the conditions, although such access is to be plant ge netic resources for food and provid ed according to national legislation. It agriculture shall require that the condi- is assumed that this national legislation deals tions of the MTA shall apply to the with the mechanics of implementation (coun- transfer of plant ge netic resources for tries were concerned, for instance, with the food and agriculture to an oth er person modalities of access to materials in national or entity, as well as to any subsequent parks and other protected or vulnerable ar- transfers of those plant ge net ic resourc- eas) and not with the establishment of new es for food and agriculture. requirements or conditions that are incon - sistent with the Treaty. National legislation Paragraph 12.4 mandates the use of a per tain ing to in situ materials must allow for standard Material Transfer Agreement—a ac cess if this provision is to be “without prej- system very similar to that used by CGIAR udice to the other provisions under this Ar- centres today. The MTA would bind the re- ti cle,” as the paragraph states. cipient of Annex I PGRFA to certain condi- As with proprietary information, Article tions and would require that recipient to pass 12 provides some exceptions to what kinds on these obligations to any subsequent re- of genetic materials must be made available, cipient. The Treaty does not specify the form and when. Contracting Parties and centres of the MTA, whether it is to be signed or, like need not make genetic material “under de vel - the MTA used by CGIAR centres, employ the opment” available during its period of de vel- “software” approach. Informally, CGIAR op ment. While the intention of paragraph (e) rep re sen ta tives have argued that signed may be reasonably clear, the wording of this MTAs (1) add to the bureaucracy of imple- provision is problematic in that it does not mentation, (2) provide no additional or sig- specify what “under development” means, nifi cant legal advantages and that recourse nor does it defi ne when the “period” of de vel - to the courts is rarely the route taken in cases op ment ends. of infringement in any case, and (3) the pro- Paragraph (f) specifi es that materials pro- cedures involved in obtain ing signatures in tected by IPRs will be made available in a many countries result in inhibiting fl ows of manner consistent with those rights. germplasm. None of the paragraphs makes specifi c The main provisions of the MTA will deal reference to practical implementation points with IPRs and with the benefi t-sharing re- that may concern the centres such as wheth- quirement, discussed above. The precise er there is an obligation to transfer diseased content of the MTA, and thus both the “for- materials in contradiction of quarantine laws mula” for benefi t-sharing and the procedures and regulations (presumably there is not). for administering the MTAs, is not specifi ed by the Treaty. These matters were left to the 12.4 To this effect, facilitated access, Govern ing Body to decide. Article 13 on in accordance with Articles 12.2 and 12.3 Benefi t-Sharing specifi es that the “form and above, shall be provided pursuant to a manner of payment” will be determined “in standard material transfer agreement line with commercial practice” by the Gov- (MTA), which shall be adopted by the erning Body at its fi rst meeting, which will Governing Body and contain the pro vi- take place with in a year of the Treaty’s com- sions of Articles 12.3(a), (d) and (g), as ing into force. It is important to point out that well as the benefi t-sharing provisions these de ci sions, like all decisions by the Gov- set forth in Article 13.2(d)(ii) and other erning Body, must be taken by consensus
SUSAN BRAGDON (EDITOR) 32 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
(unless, by consensus, they decide on an- benefi t of the Multi lat er al System, and states other method). that benefi ts arising from the use of PGRFA under the Multilateral System should be 12.5 Contracting Parties shall ensure shared fairly and equitably through a number that an opportunity to seek recourse is of mechanisms, both vol un tary and manda- avail able, consistent with applicable tory in nature. ju ris dic tion al requirements, under their Contracting Parties agree, for ex am ple, legal systems, in case of contractual dis- to “provide and/or facilitate access to putes arising under such MTAs, recog - tech nol o gies for the con ser va tion, charac- nizing that obligations arising under terization, evaluation and use of plant such MTAs rest exclusively with the par- genetic re sourc es.” This particular para- ties to those MTAs. graph [13.2.(b)(i)] encourages the transfer of technol o gies including those that are 12.6 In emergency disaster situations, es sen tial ly “embedded” in genetic ma te - the Contracting Parties agree to provide ri als. But, the trans fer is not mandatory, facil i tat ed access to appropriate plant and respect for proper ty rights is specifi- genetic re sourc es for food and agriculture cally ac com mo dat ed. in the Multi lat er al System for the purpose Likewise, Article 13 encourages (but does of contributing to the re-establishment of not set forth enforceable require ments for) agricultural sys tems, in cooperation with capacity-building in de vel op ing countries disaster relief co-ordinators. and countries with economies in transition. Elements identified in the article include Paragraph 12.5 simply states that Con- train ing, strengthening of facilities and the tract ing Parties will ensure that there is some carrying out of research in these countries. mechanism in their legal system for ad- dress ing violations of the MTA. (It should be 13.2(a) The Contracting Parties agree to noted that the Treaty does not specify the make available information which shall, legal ju risdic tion applicable to the MTA. Of- inter alia, encompass cat alogues and ten con tracts, such as MTAs, would do this, inven to ries, information on technolo- saying, for example, that in the case of a dis- gies, results of technical, scien tifi c and pute, the relevant laws of a named country socio-economic research, in clud ing char- would ap ply.) Paragraph 12.5 is tied to Article ac ter iza tion, evaluation and uti li za tion, 21 on compliance. Article 21 provides for regard ing those plant genetic resources legal as sis tance and advice to be made avail- for food and agriculture under the Mul- able, pre sum ably by the Governing Body. ti lat er al System. Such in for ma tion shall Paragraph 12.6 provides for the provision be made available, where non-confi den- of materials needed to restore agricultural tial, subject to applicable law and in systems in disaster situations regardless of ac cor dance with national ca pa bil i ties. whether the recipients are Contracting Par ties Such information shall be made avail- to the Treaty or not. This paragraph was able to all Contracting Parties to this drafted in support of the Global Plan of Ac- Treaty through the information system, tion, which has an “Activity” devoted to this pro vid ed for in Article 17. issue. Confi dential and proprietary information Benefi t-sharing is not covered by this mandatory require ment. The Treaty’s article on Benefi t-Sharing (Ar- And, all transfers are contingent on and sub ject ticle 13) recognizes that access itself is a major to any relevant intellectual property rights.
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13.2(d)(ii) The Contracting Parties incor po rat ing materials from the multilateral agree that the standard Material Trans- system. The previously mentioned MTA will fer Agreement referred to in Article contain the benefi t-sharing requirement and 12.4 shall include a requirement that a will bind the recipient of germplasm from the recip i ent who commercializes a prod- system to provide monetary benefi ts in cer- uct that is a plant genetic resource for tain cir cum stanc es. food and ag ri cul ture and that incorpo- When a recipient receives material from rates material accessed from the Mul- the multilateral system and uses that ma teri al tilateral System, shall pay to the to produce a commercial product that “is a mechanism referred to in Article 19.3(f), PGRFA,” then the recipient will be obliged to an equitable share of the benefi ts aris- pay “an equitable share of the benefi ts aris ing ing from the com mercial iza tion of that from the commercialization of that product.” product, except whenever such a prod- This requirement, it should be under stood, uct is available without re stric tion to will not apply to the com mer cial iza tion of a others for further research and breed- product, such as bread containing wheat ing, in which case the recipient who produced by a variety incorporating mate- commercializes shall be encouraged to rial obtained from the multilateral sys tem. make such payment. The requirement will, however, apply to the variety—to the plant genetic resource—that has The Governing Body shall, at its fi rst been commercialized. The Governing Body, meeting, determine the level, form and at its fi rst meeting, is supposed to de ter mine manner of the payment, in line with “the level, form and manner of the payment, commer cial practice. The Governing in line with commercial practice.” The pay- Body may decide to establish different ment will be made into a mechanism such as levels of pay ment for various categories a trust fund established at FAO and con- of recip i ents who commercialize such trolled by the Governing Body. This fund prod ucts; it may also decide on the need would be used to support activities con sis tent to exempt from such payments small with the goals of the Treaty, taking into con- farm ers in de vel op ing countries and in sideration the Global Plan of Action. The coun tries with econ o mies in transition. benefi ts, according to the Treaty, should fl ow The Governing Body may, from time to “primarily, directly and indirectly, to farm- time, review the levels of payment with ers…” At its first meeting the Governing a view to achieving fair and equitable Body (see Article 13.4) will “consider relevant sharing of benefi ts, and it may also as- poli cy and criteria for specific assistance sess, with in a period of fi ve years from un der the agreed funding strategy.” the entry into force of this Treaty, wheth- There is one exception to the requirement er the man da to ry payment re quire ment to make a monetary payment, and it is a big in the MTA shall apply also in cases exception. When the product—for example, where such commer cial ized products are the new crop variety—is made available available with out restriction to others for “with out restriction to others for further further re search and breeding. research and breeding,” no payment is required, though it is encouraged. In practice, Article 13.2(d)(ii) is arguably the most it would appear that this means that varieties in ter est ing and controversial provision re- in cor po rat ing material from the multilateral lated to benefi t-sharing. This paragraph lays system that are protected by UPOV-styled out a mandatory benefi t-sharing scheme con- Plant Breeders’ Rights, will not be subject to nect ed to the commercialization of PGRFA man da to ry, mon e tary benefi t-sharing. Why?
SUSAN BRAGDON (EDITOR) 34 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Because, such varieties are freely available restriction for further research and breeding. for further re search and breeding. Varieties Given the fact that such a decision to expand and other ma te ri als that are protected by util- the scope of the mandatory benefi t-sharing ity patents will be subject to the benefi t-shar- scheme would have to be made by consensus, ing requirement, however, because most the likeli hood of the Governing Body taking patent laws restrict the use of the patented this step would appear slim at this point. inven tion for research as well as for use as a Finally, Contracting Parties have agreed breeding material. Presum ably, a patent (in Article 13.6) at some unspecifi ed point in holder could renounce certain rights afforded the future to consider “modalities of a strat- by a patent and thus escape the mandatory egy of voluntary benefi t-sharing con tri bu - ben e fi t-sharing pro vi sion. For example, one tions” from food-processing industries. could patent a variety or line and then grant Again, it does not appear that this provision any and everyone a licence to use the ma teri al is going to lead to an expansion of man dato ry freely for research and breeding. So-called benefi t-sharing. “protective patent ing” would, in our view, not necessarily trig ger Article 13’s monetary The scope of the Multilateral System benefi t-sharing re quire ment, but this may Overview need clarifi cation by the Governing Body. The Multilateral System covers PGRFA Opinions are divided, however, as to that are in the public domain and un- whether a breeder from a company or in sti- der the management and control of the tu tion would or would not be obtaining ma te - Contracting Parties. Approximately 35 rials from the multilateral system were he/she crops and a modest number of forage to get materials from his/her national gene- species are affected by the provisions bank. One could argue that the Treaty regu- of the Multilateral System. Soyabean, lates transfers between (not within) Par ties, groundnut, sugarcane, tomato and and that in some cases, internal trans fers (e.g. most tropical forages are excluded between an institute’s genebank and its breed- from the system. Certain species that ers) would essentially be from one “legal are part of the genepool used by breed- person” to the same “legal person”. At the ers of cassava, potato and common least, access from the multilateral system in- beans are also excluded. volves an international transfer of ma te ri als, with the exception that access by a CGIAR centre from a genebank in the host country The multilateral system includes “all PGRFA would, of course, be considered access from listed in Annex I that are under the management the multilateral system, assuming that coun try and control of the Contracting Parties and in the is a Contracting Party. public domain” (Article 11.2). Contracting Par- As the second paragraph of 13.2(d)(ii) ties (countries) agree to encour age the private notes, the Governing Body may elect to es- sector and other rele vant organi zations within tab lish different levels of payments for dif- their jurisdiction to in clude such materials in ferent categories of users that commercialize the multilateral sys tem. In effect this means products covered by this article. It will also that the mul ti lat er al system con tains materials review the level of payments from time to under govern ment control and in the public time. And, within fi ve years of the Treaty domain, in addition to such mat erials that coming into force, the Governing Body will others might vol untar i ly put under the sys tem. specifi cally examine whether the system of Within two years of entry into force, the Gov- mandatory payments should be extended to erning Body will as sess progress in getting cover prod ucts that are available without such ma te ri als into the system.
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As is well known, negotiators debated the to those found in the MTA that Contracting content of Annex I extensively and vig or- Parties and centres will be using for Annex I ous ly. Early on, they agreed in prin ci ple that materials. Article 15 encourages Contracting crops included in the mul ti lat er al system Parties to provide centres with non-Annex I would be those im por tant for food security materials that are important to the pro- and for which coun tries were interdependent. grammes of the centres, but access will be at Such cri te ria, as valid as they might be, do the discretion of the countries, who will set the not pro vide a formula for inclusion/ terms of access, if they provide it at all. exclusion, and thus the selection of crops Additionally, donors may question from be gin ning to end was highly politicized. wheth er they wish to provide funding for Annex I lists some 35 crops (or in the case of work on crops that are not part of the mul ti- Brassicas, crop com plexes) and a number of lat er al system–crops for which countries have forages. decided to handle conservation, de vel op ment In addition to the problem of which crops and benefi t-sharing individually or through to include, negotiators faced the related prob- bilateral arrangements. Unless countries are lem of how to defi ne each crop in opera- willing to provide non-Annex I materials, tional terms such that one might know, some genebank collections risk becoming rather pre cise ly, what was and was not cov- “fixed in time”. Genebank managers and ered. There was never any doubt that wheat oth er offi cials may therefore wish to discuss would be included in the multilateral system. this situation with relevant countries and try But, what, precisely, does “wheat” really to come to some agreement that will ensure mean? IPGRI assisted in organizing panels continued fl ow of materials for conservation of experts to provide scientifi c information and development purposes. on these and other questions (such as which Additions (and exclusions) to Annex I can be forage spe cies are most important to food made by the Governing Body—by con sen sus. security). The advice of the experts was not In all likelihood, the list of crops is “fi xed” for always heeded. In the end, negotiators de- some time. fi ned crops, often as much on the basis of political as scientific cri te ria, by genus/ General provisions of the Treaty genera, noting whenever a particular genus The foregoing analysis has focused on the or species was excluded. Treaty’s establishment of a multilateral sys- In some cases, negotiators decided to ex- tem for access and benefi t-sharing. The Treaty, clude specifi c species associated with a crop, however, covers a number of general topics, and in some cases the excluded species are and contains some 17 articles dealing with ones typically considered part of the gene- institutional matters such as the operations pool that a breeder might use or want access of the Governing Body, the Secretariat, etc. to. Two examples would be Phaseolus polyan- Below, we provide a very brief description thus and Solanum phureja. The defi nition of of the remaining articles. cassa va specifi es Manihot esculenta only; thus wild relatives now being used to increase Preamble: pro tein content and improve disease resis- The Preamble notes the importance of PGRFA tance are excluded. Finally, some defi nitions and recognizes the contributions farmers are simply ambiguous. For example, wheat have made in conserving and making avail- is defi ned as “Triticum et al.” able these resources. It describes the Global CGIAR centres will continue to distribute Plan of Action as the internationally agreed non-Annex I materials—probably under an framework for PGRFA-related activities. Sig- MTA containing provisions identical or close nifi cantly, the Preamble states that the Treaty
SUSAN BRAGDON (EDITOR) 36 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
does not imply a change in the rights or ob- shall not claim any intellectual property or ligations of Parties under other international other rights that limit the facilitated access to agreements, and states that this is not meant the plant genetic resources for food and ag- to imply a hierarchy between this Treaty and ricul ture, or their genet ic parts or compo- other agreements. Finally, the Preamble notes nents, in the form received from the that the Treaty will be within the framework multilateral sys tem.” The term “ge netic parts of FAO, and operate under Article XIV of the or com po nents” is not defi ned, nor is the term FAO Constitution. “in the form received.”
Article 1. Objectives: Article 3. Scope: The objectives are the conservation and The Treaty relates to PGRFA. It is important sustainable use of PGRFA and the fair and to note that it covers more than just the crops equitable sharing of benefi ts arising out of in the multilateral system (which is dealt with their use. Article 1 notes that this is in har- in Part IV of the Treaty). Other articles, for mony with the Convention on Biological example, on conservation and sustainable use, Diversity (CBD). international cooperation, the Global Plan of Action, networks, the Global Information Sys- Article 2. Use of Terms: tem and the funding strategy, are not limited Eight terms are defi ned. Most of the defi ni- to multilateral system crops. tions are based, at least loosely, on those found in the CBD. In the fi nal days of the Article 4. General Obligations: negotiations, there was considerable debate Parties must ensure that their laws and regu- over the defi nitions. The need to compromise lations conform to the obligations laid out in infl uenced the wording of two defi nitions in the Treaty. particular. The compromise-induced ambigu- ity may become the source of problems in the Article 5. Conservation, Exploration, future in determining what exactly is covered Col lec tion, Characterization, Evaluation by certain provisions of the Treaty. The two and Doc u men ta tion of PGRFA: “problematic” defi nitions: “Subject to national legislation”, Contracting “Plant genetic resources for food and ag- Parties agree to undertake the above activities ricul ture” means any genetic material of plant and to cooperate with each other. No fi rm or i gin of actual or potential value for food obligations are contained in the article; nev- and ag ri cul ture. ertheless, the article sends signals about the “Genetic material” means any ma te ri al of priorities of countries. For instance, it states plant origin, including reproductive and that Contracting Parties will “cooperate to veg e ta tive propagating material, con tain ing promote the development of an effi cient and func tion al units of heredity. sustainable system of ex situ conservation.” In the latter defi nition, it may be un clear as to which clauses modify or “defi ne” others, Article 6. Sustainable Use of PGRFA: and this in turn could lead to con fusion as to Contracting Parties commit to developing which materials are, for example, affect ed by appropriate policy and legal measures to the article on facilitated access to PGRFA. promote the sustainable use of PGRFA. The Finally, it should be noted that some im- article provides examples of what these portant terms are not defi ned. This may also measures may include: policies promoting lead to confusion and controversy. The best diverse farming systems (“as appropriate”), example of this involves a term used in Ar- strengthening of research, base broadening, ticle 12.3(d) which states that “Recipients expanded use of local crops and varieties
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(“as appropriate”), reviewing breeding protection of traditional knowledge, the right strategies and regulations regarding variety to participate in benefi t-sharing, and the right release and seed distribution, etc. As with to participate in making decisions at the na- many other articles, this article contains no tional level regarding PGRFA. As with other specifi c “enforceable” obligations. However, articles described above, the obligations are for those who wish to use the contents as too vague and too conditioned by phrases guidance or to encourage governments to such as “as appropriate” to amount to a fi rm undertake activities (e.g. base broadening) commitment to do anything specifi c. Article the encouragement and guidance are here. 9.3 notes that “Nothing in this Article shall be interpreted to limit any rights that farmers Article 7. National Commitments and In- have to save, use, exchange and sell farm- ter na tion al Cooperation: saved seed/propagating material, subject to Contracting Parties commit to integrating national law and as appropriate.” In other the activities referred to in Articles 5 and 6 words, if they have rights, they have them; into their agricultural and rural development if they don’t, they don’t. programmes. International cooperation shall be directed in particular to capacity-building Article 14. Global Plan of Action: in developing countries and countries with Contracting Parties agree to promote the economies in transition, enhancing interna- effective implementation of the GPA as an tional activities, strengthening institutional international framework for PGRFA-related arrangements and implementing the Treaty’s efforts, taking into account Article 13 on funding strategy. Benefi t-Sharing.
Article 8. Technical Assistance: Article 15. Ex Situ Collections of Plant Parties agree to “promote the provision of Ge net ic Resources for Food and Ag ri cul ture technical assistance”. held by the International Agricultural Research Centres of the Consultative Group Article 9. Farmers’ Rights: on In ter na tion al Agricultural Research and Over time, “Farmers’ Rights” has come to other In ter na tion al In sti tu tions: mean different things to different people. In 1994, CGIAR centres concluded agreements To some it is associated with a desire for with FAO, placing col lec tions of germplasm a form of intellectual property rights for “in trust” for the benefi t of the international farmer-developed materials; to others it is commu ni ty, under the auspices of FAO. It a political slogan that leads to recognition was understood that these agreements were of farmers’ contributions and more PGRFA- interim, pending completion of the intergov- related activities of benefi t to small, tradi- ernmental negotiations on the Treaty. tional farmers. Article 9, at least, “settles” The Treaty will become binding for the issue as regards the “international” CGIAR centres, when they (individually) sign implications of the term. In Article 9, Con- agreements with the Governing Body of the tracting Parties recognize the contribution of Treaty—assuming centres choose to do so. As farmers, but state that the responsibility for there will be no “Governing Body” until the the realization of Farmers’ Rights rests with treaty itself is ratifi ed by a minimum of 40 national governments. Each Contracting Party, countries, the agreements with the Governing “in accordance with their needs and priori- Body must await the Treaty’s entry into force, ties…as appropriate, and subject to national and, until then, the current agreements with legislation”, agrees to take measures to protect FAO, in the context of the International Un- and promote Farmers’ Rights, including the der tak ing, apply.
SUSAN BRAGDON (EDITOR) 38 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
As noted earlier, the access and benefi t- implementation of this Treaty.” The Govern- sharing provisions of the treaty will apply ing Body will periodically establish a target to Annex I materials held by CGIAR centres. for such funding. Contracting Parties will Non-Annex I materials will continue to be take steps in other international mechanisms, available as well, though the current MTA funds and bodies to ensure that “due prior- used in their transfer will likely be amended ity and attention to the effective allocation of in consultation with the Governing Body of predictable and agreed resources” is given to the Treaty to refl ect relevant provisions of the implementation of plans and programmes the Treaty (e.g. those concerning benefi t- under the Treaty. Contracting Parties agree to sharing). accord due priority to PGRFA in their own Non-Annex I material received and con- plans and priorities. Voluntary contributions served after the coming into force of the to the Treaty’s funding strategy are encour- Treaty would be available on terms mutually aged, and the Governing Body shall consider agreed with the coun try of origin or other modalities of a strategy to encourage such country that acquired them in accordance contributions. Priority for funding will be with the CBD or other applicable law. Other given to “agreed plans and programmes for provi sions of the Treaty related to the centres farmers” in developing countries (especially are similar to those now in effect under the in least developed countries) and in countries FAO-CGIAR Agreements. with economies in transition.
Article 16. International Plant Genetic Article 19. Governing Body: Re sourc es Networks: The Governing Body consists of the Con- The Treaty calls for existing networks to be tracting Parties, i.e. those countries that strengthened and new networks to be devel- have formally ratifi ed the Treaty. (Coun- oped to achieve complete coverage of PGRFA. tries that voted to adopt the Treaty at the Contracting Parties agree to encourage par- FAO Conference in November 2001, or sub- ticipation by all relevant institutions—gov- sequently sign the Treaty, are not members ernment, private sector, NGO, research and of the Governing Body unless they also take breeding, etc. the step of formally ratifying it. Ratifi cation is the key.) The Governing Body provides Article 17. The Global Information System policy direction and guidance, adopts plans, on PGRFA: programmes and budgets, is empowered to Contracting Parties agree to cooperate to establish subsidiary bodies (e.g. committees), develop and strengthen a global information etc. It will adopt a funding strategy at its fi rst system, based on existing systems. Contract- session, and will periodically set a target for ing Parties are encouraged to provide infor- this strategy, “taking the Global Plan of mation that would allow “early warnings” of Action” into account. The Governing Body hazards to PGRFA to be issued with a view to may also consider and adopt amendments to safeguarding the material. Finally, Contract- the Treaty. Article 19 states that the Governing ing Parties agree to cooperate with the FAO Body will keep the Conference of the Parties Commission in making periodic reassess- to the CBD informed of its work. ments of the state of the world’s PGRFA and The most controversial element in Article to update the Global Plan of Action. 19 concerns how decisions will be taken. Ac cord ing to the Article, “All decisions of the Article 18. Financial Resources: Governing Body shall be taken by con sensus” Contracting Parties agree to “undertake unless, by consensus, another method is to implement a funding strategy for the agreed. It remains to be seen whether this
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“one-country one-veto” approach will allow Article 23. Amendments to the Treaty: the Treaty to evolve, or even to resolve the Amendments may be proposed by any Con- conten tious issues that are already on its tracting Party. All amendments will be made agenda, such as the terms of benefi t-sharing by consensus, and shall come into force 90 to be em bod ied in the standard Material days after approval. Transfer Agreement. Similarly, enlargement of the list of crops in the multilateral system Article 24. Annexes: would seem unlikely in the near future given Annexes are an integral (binding) part of the that unani mous approval would be needed Treaty. Amendments to Annexes shall be by for adding any crop. consensus. The Governing Body shall meet every two years, back-to-back with meetings of the FAO Article 25. Signature: Commission on Genetic Resources, if pos si ble. The Treaty is open for signature (a tan- Other meetings may be called, as nec es sary. gible expression of support and intention to ratify) for one year. (The Treaty may, of Article 20. Secretary: course, be ratifi ed by any country regard- The Secretary shall be appointed by the Di- less of whether it has signed the Treaty rector-General of FAO. The Secretariat shall within that year.) provide practical and administrative support for the Governing Body. Article 26. Ratifi cation, Acceptance or Ap prov al: Article 21. Compliance: Instruments of ratifi cation shall be deposited At its fi rst session, the Governing Body shall at FAO. consider and approve “cooperative and effective” operational mechanisms to pro- Article 27. Accession: mote compliance and to address issues of The Treaty is open for “accession”, a legal non-compliance. Examples of this (cited term for ratifi cation or approval that applies specifi cally in the article) might be monitor- to countries that have not signed the Treaty in ing and provision of advice and assistance, in- the year in which it is open for signature (see cluding legal advice and assistance. Note that Article 25). Countries that exercise this option this Article’s provisions, presumably, would enjoy equal rights and status with those that indicate that the Governing Body, through the sign and ratify–no distinction is made. Secretariat might have some responsibilities for, or at least may assist with, promoting and Article 28. Entry into Force: ensuring MTA compliance. The Treaty shall enter into force 90 days after the 40th instrument of ratifi cation or acces- Article 22. Settlement of Disputes: sion is deposited with FAO. Following this, In the event of disputes between Contract- the Treaty comes into effect for subsequent ing Parties, Contracting Parties shall seek countries, 90 days after they ratify/approve solutions through negotiation. A third party the Treaty. might be recruited to mediate. Arbitration procedures are laid down in Annex II to Article 29. Member Organizations of FAO: the Treaty, and are typical for treaties. Sub- This Article pertains to entities such as the mission of the dispute to the International European Community, and how it notifies Court of Justice is an option. Conciliation in the Body of its competence to speak for accordance with Annex II is another, fi nal, the group, or not, in meetings. Ratification option. by the EU is not counted in addition to its
SUSAN BRAGDON (EDITOR) 40 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
member states when determining whether important text is open to confl icting 40 countries have ratified the Treaty. interpretations. Major problems or challenges have been bequeathed to Article 30. Reservations: the Treaty’s future Governing Body, No reservations may be made to the Treaty which will attempt to resolve remain- by Contracting Parties. ing issues by consensus. Until they do, ambiguities will remain, and Contract- Article 31. Non-Parties: ing Parties will implement the Treaty The Contracting Parties agree to encourage in light of their understanding of it. non-Parties to accept the Treaty. This is the Lack of clarity will pose diffi culties only mention of non-Parties in the Treaty. for Contracting Parties and CGIAR There was much discussion earlier of whether centres, equally. the Treaty would dictate the use of different (potentially discriminatory) treatment of non-Parties (in terms of access and benefi t- Overview sharing, for instance). In the end, the Treaty Treaties are developed largely through is silent on the issue. Presumably, this means political, not scientific, processes. This that the Treaty does not govern or affect the would seem so obvious as not to warrant dealings of Contracting Parties or CGIAR comment. Nevertheless, with treaties ad- centres with non-Parties. dressing largely scientifi c topics, questions are inevitably raised about the quality of Article 32. Withdrawals: “science” found in the document: Don’t At any time after two years after the coming they understand that…? Why didn’t they…? into force of the Treaty, Parties may withdraw Didn’t our representatives explain that…? by formally notifying FAO. Withdrawal takes Look, these two paragraphs are contradic- effect one year after the receipt of such noti- tory! Why are the defi nitions of scientifi c fi cation. terms so “political”? The International Treaty on Plant Ge- Article 33. Termination: netic Resources for Food and Agriculture is If the number of Contracting Parties drops the result of a long–and most would say, below 40, the Treaty will be automatically gruel ling–series of political negotiations terminated. between coun tries. The fi rst proposals for a legally binding Treaty on the subject were Article 34. Depositary: made in 1981. The current round of negotia- The Director-General of FAO shall be the tions commenced in 1994. The subject of the Depositary of the Treaty. Treaty was, and remains, controversial, and the Treaty itself is the result of countless compromises. From anyone’s vantage point, Article 35. Authentic Texts: it is less than per fect. “Perfection”, however, The offi cial texts of the Treaty are in Arabic, was never one of the options on the table. Chinese, English, French, Russian and Span- From any per spective, the Treaty contains ish. Each is equally authentic. ambiguities and un re solved problems, some of which were known and vis i ble to nego- Issues and concerns tiators, some of which were prob a bly not. Overview Certain problems exist simply be cause ne- As with most treaties, this Treaty con- gotiators could not agree on a solution and tains ambiguities and instances where decided instead to move forward, accepting
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the fact that am bigu ities exist and that future terms in the text of the yet-to-be-drafted disputes will arise. Material Transfer Agreement, or whether What follows is an exploration of some of they will decide to formu late guidelines, for these ambiguities and “problems”. instance. Unless precise royalty percentages are identifi ed in the MTA, it is also not clear Defi nitional issues who will be au tho rized to make the fi nal There is lack of clarity about the precise mean- determination of an amount of payment due ing of certain terms used in the Treaty. This under 13.2(d)(ii). Of course, some accessions lack of clarity exists even in Article 2, where will contribute more, quantitatively or terms are defined. Uncertainties over the qualitatively, to a fi nal prod uct, and thus one meaning of terms in the text will, of course, could envisage a system that would differ- affect both countries and CGIAR centres. entiate according to use. Such a system The most troubling ambiguities are those might require multiple royalty rates. These pertaining to what—precisely—is being issues are likely to be addressed by negotia- ac cess ed under the multilateral system, how tion within the Interim Committee and the it can be used/protected, and under what Governing Body. con di tions access might be denied or con di - Finally, in terms of defi nitional issues, we tioned. Article 12.3(d), for instance, states: note Article 12.3(e) on access. This para graph “Recip i ents shall not claim any intellectual states that “Access to plant genetic resources property or other rights that limit the facili- for food and agriculture under development, tated access to the plant genetic resources for including material being developed by farm- food and agriculture, or their genetic parts or ers, shall be at the discretion of its developer, com po nents, in the form received from the during the period of its development.” What multi lat er al system.” The term “genetic parts does “during the period of its development” and com po nents” is not defi ned and would mean? When does this period begin and end? be subject to different interpretations. More What actions constitute “development”? problem at ic is the term “in the form re- Pre sum ably, certain normal practices would ceived.” Some countries were of the opinion be allowed, for example the development and that this paragraph would preclude the kind retention (without mandatory access being of patenting of genes which is allowed in the made available) of multiple lines for use in United States, namely the patenting of an producing a variety; for the development of isolated, purifi ed DNA molecule for which a materials that would be made available un der function (utility) is iden tifi ed. These countries contract or sold to another entity, etc. claim that the pat ent ed gene is the same as that received. Others counter that the isolated The list of crops for the Multilateral and purifi ed form is different from the “form Sys tem received” from the multilateral system. Annex I was the subject of passionate debate Once it is determined that materials from and substantial scientifi c input from experts the multilateral system have been used in (e.g. the results of technical workshops, the such a way as to trigger the mandatory ben- reports of groups of experts, etc.). Never- efi t-sharing mechanism of the Treaty, Article theless, the text is less than clear in certain 13.2(d)(ii) says that the level, form and man- regards. “Wheat” is included in Annex I, but ner of the payment will be “in line with defi ned as “Triticum et al.” Et al.? In addition, commer cial practice.” What “commercial the Treaty does not acknowledge the fact that practice” is remains to be defi ned. At this taxonomists and breeders will disagree about point, it is not clear whether Contracting what is included within a particular genus Parties will try to defi ne this in operational or even species. Moreover, such groupings
SUSAN BRAGDON (EDITOR) 42 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
change over time. Will the materials under accept the Treaty. The FAO Commission, the multilateral system expand and contract through its agreement with CGIAR cen- as taxonomic understandings of what con- tres, has already confi rmed the history of stitutes a particular genus evolve? Assum- CGIAR-held accessions, i.e. that they were ing that the Governing Body will not want “donated or collected on the understand- to undertake the cumbersome and costly task ing that these accessions will remain freely of constituting its own taxonomic authority, available and that they will be conserved on what basis will Contracting Parties and and used in research on behalf of the in- CGIAR centres decide whether question- ternational community, in particular the able categories/materials are included or developing countries.” Given this under- excluded? Practically speaking, how would standing, we cannot logically interpret the the Treaty handle cases if materials consid- Treaty as implying that access to non-Par- ered today to be part of Annex I were to fall ties would be denied. It would be equally off the list by virtue of changes in taxonomic illogical, however, to argue that access to practices? non-Parties would be without any terms or conditions. We may assume, therefore, that Non-Parties access to non-Parties—to all in the inter- The Treaty regulates relations between national community—should be provided Contracting Parties, and between centres by centres, assuming that the non-Party ac- (that agree to be bound by provisions of the cepts the terms and conditions in the new Treaty) and Contracting Parties. Like most MTA. Countries will be clearly have more treaties, it does not specify relations with discretion to decide whether to provide ac- non-Parties. The Treaty’s article on non- cess to non-Parties, and if so, on what terms. Parties (Article 31), as noted above, simply The Treaty does not mandate a particular states that non-Parties are encouraged to course of action in this regard.
Annex I. List of crops covered under the multilateral system FOOD CROPS Genus Observations Crop Breadfruit Artocarpus Breadfruit only Asparagus Asparagus Oat Avena Beet Beta Brassica complex Brassica et al. Genera included are: Brassica, Armoracia, Barbarea, Camelina, Crambe, Diplotaxis, Eruca, Isatis, Lepidium, Raphanobrassica, Raphanus, Rorippa, and Sinapis. This comprises oilseed and vegetable crops such as cabbage, rapeseed, mustard, cress, rocket, radish and turnip. The species Lepidium meyenii (maca) is excluded Pigeon Pea Cajanus Chickpea Cicer Citrus Citrus Genera Poncirus and Fortunella are included as root stock
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Annex I. (cont.) Crop Genus Observations Coconut Cocos Major aroids Colocasia, Major aroids include taro, cocoyam, dasheen and Xanthosoma tannia Carrot Daucus Yams Dioscorea Finger millet Eleusine Strawberry Fragaria Sunfl ower Helianthus Barley Hordeum Sweet potato Ipomoea Grass pea Lathyrus Lentil Lens Apple Malus Cassava Manihot Manihot esculenta only Banana / Plantain Musa Except Musa textilis Rice Oryza Pearl millet Pennisetum Beans Phaseolus Except Phaseolus polyanthus Pea Pisum Rye Secale Potato Solanum Section tuberosa included, except Solanum phureja. Eggplant Solanum Section melongena included Sorghum Sorghum Triticale Triticosecale Wheat Triticum et al. Including Agropyron, Elymus and Secale Faba bean / Vetch Vicia Cowpea et al. Vigna Maize Zea Excluding Zea perennis, Zea diploperennis and Zea luxurians
FORAGES Genus Species Legumes Astragalus chinensis, cicer, arenarius Canavalia ensiformis Coronilla varia Hedysarum coronarium Lathyrus cicera, ciliolatus, hirsutus, ochrus, odoratus, sativus
SUSAN BRAGDON (EDITOR) 44 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Annex I. (cont.) FORAGES Genus Species
Lespedeza cuneata, striata, stipulacea Lotus corniculatus, subbifl orus, uliginosus Lupinus albus, angustifolius, luteus Medicago arborea, falcata, sativa, scutellata, rigidula, truncatula Melilotus albus, offi cinalis Onobrychis viciifolia Ornithopus sativus Prosopis affi nis, alba, chilensis, nigra, pallida Pueraria phaseoloides Trifolium alexandrinum, alpestre, ambiguum, angustifolium, arvense, agrocicerum, hybridum, incarnatum, pratense, repens, resupinatum, rueppellianum, semipilosum, subterraneum, vesiculosum
Grasses Andropogon gayanus Agropyron cristatum, desertorum Agrostis stolonifera, tenuis Alopecurus pratensis Arrhenatherum elatius Dactylis glomerata Festuca arundinacea, gigantea, heterophylla, ovina, pratensis, rubra Lolium hybridum, multifl orum, perenne, rigidum, temulentum Phalaris aquatica, arundinacea Phleum pratense Poa alpina, annua, pratensis Tripsacum laxum
Other forages Atriplex halimus, nummularia Salsola vermiculata
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V. The Convention on Biological Diversity
Relevance to genetic resource status of ex situ collections acquired prior to pro fession als the CBD’s entry into force that are not part The Convention on Biological Di ver si ty of Annex I. The solution to how to address (CBD) is an ambitious attempt to integrate Farmers’ Rights in the IT was to leave their previously distinct policy goals. It entered implementation to the national lev el. into force in 1993 and as of 15 March 2001, The IT and national law implementing it had 183 Parties. It recognizes the pervasive will now be the main entry point for a PGRFA importance and distribution of biodiversity manager concerned about legal require ments and requires protection of all biodiversity in stemming from international obligations. all types of ecosystems and habitats. The CBD Nevertheless, PGRFA not on the list will still applies to all types of genetic resources (mi- fall under the Access and Benefi t-Sharing crobial, plant, animal, aquatic and marine), (ABS) provisions of the CBD and it is there- both wild and domesticated. Nevertheless, fore important for a GR pro fes sion al to be the impe tus for the treaty was from an en vi- aware of its requirements and orientation. ron men tal constituency and the ne go ti a tors National policy-makers should also be aware by and large came from national Ministries that the IT list can be amended and hence of Environment with little or no focus on the grow so it may be wise to retain fl exibility in PGRFA. At the con clu sion of the treaty the national ABS laws to accommodate these negotiators passed a resolution, Resolution fu ture changes. 3 of the Nairobi Conference of 22 May 1992, Because the ABS provisions are the most calling for certain outstanding issues related relevant to the work of a GR professional, this to PGRFA to be addressed within the FAO chapter will begin by focusing on those re- Global System. quirements and how they have been im ple- One of the outstanding issues was the mented over the last several years. With the status of genetic resources held in ex situ con clu sion of the IT, in the CBD it is most col lec tions prior to the Con ven tion’s entry im por tant for the GR professional to un der - into force. As will be discussed in detail in stand its ABS principles and requirements section II below, the CBD establishes in ter- and the relevant national implementation na tion al le gal principles for access to ge- leg is la tion. Nev er the less, because they may netic resources held in both in situ and ex have rel e vance after discussing ABS, the situ conditions. The CBD, however, only chapter will briefl y discuss other articles of applies to genetic re sourc es held in ex situ rele vance and some of the recent activities conditions that were acquired after its entry undertaken by the Parties for im ple men ta tion into force and therefore does not cover pre- of them. CBD collections. And, as noted in Chapter 4 it no longer effectively applies to post-entry Article 15: Access to genetic resources into force of collections of IT Annex I crops. (and related provisions) The other outstanding issue identifi ed in Relevant provisions Resolution 3 is the real iza tion of Farmers’ When dealing with access or dis tribu tion of Rights. The revision of the International genetic resources, the GR pro fes sion al must Un der tak ing was in part an ef fort to address fi rst determine what, if any, international le- these outstanding issues. The In ter na tion al gal instrument and corresponding national Treaty clarifi es how access and benefi t-shar- law applies. If the resources in question are ing to Annex I crops will be han dled and part of the IT list of multilateral system (An- thus the crops listed in Annex I represent the nex I) crops and the materials are under the large majority of ex situ acces sions. The IT management and control of a Contract ing does not, however, explicitly address the Party to that Treaty, then the provisions of the
SUSAN BRAGDON (EDITOR) 46 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
IT apply (the list of crops can also be amended Party providing genetic resources,3 unless by consen sus of the Parties after the IT enters otherwise determined by that Party. While the into force). The access provisions of the CBD general principles on access emphasize na- therefore apply to non-list PGRFA collected tional action, they do not mandate bilat er al after the entry into force of the Convention. transactions nor do they preclude parties from In addition, GR professionals will need to es tab lish ing or entering into re gion al or crop be aware of any crop or other networks that networks or a larger multilateral sys tem of the country may have joined and any access regulating access. Hence, gov ernments, exer - and exchange regulations established by the cising their national sovereignty to do so and network agreement, and whether these agree- under the auspices of the FAO Com mis sion, ments are consistent with the IT. (Note: The IT established a multilateral system in the IT and establishes certain rules governing access and the Parties to the CBD re peat ed ly noted its benefi t-sharing for non-IT Annex I materials support for this process. held by CGIAR centres. See Chapter 4.) Nevertheless, the fact remains that the re- The CBD as a whole emphasizes national quirements of mutually agreed terms and action and its provisions on access follow this prior informed consent imply a bilateral trans- orientation. A GR professional must there fore action between a user and a provider of ge netic be aware of how his/her government has resources. Insofar as the terms are not leg is la - im ple ment ed the CBD provisions. An un der - tively predetermined, in reaching mu tual ly standing of the general principles and ori en- agreed terms for access a GR profes sion al may tation of the CBD on ABS may be helpful not wish to consider the ad minis tra tive costs of only in understanding national laws that are implementing agreements whose terms vary created to implement, or at least are inspired from the norms of the genebank (for genebank by, the CBD but also in understanding some managers) or the IT’s Multi lat er al System. of the sensitivities that may underlie access They may also want to ensure that the terms and distribution of genetic resources. do not confl ict with their mis sion as a GR Underpinning the Convention and at the pro fes sion al, for example, en sur ing the terms heart of some of the most con ten tious debates do not unduly restrict subse quent distribution among parties is the recognition of the States’ to their constituents, or, in fact, to non-nation- sovereign rights over the genetic resources als in ways that will prompt them to deny resid ing in their jurisdictions (Article 3). Ar- access to ma te ri als that the genebank might ti cle 15 recognizes as a corollary the sovereign need in the future. Many governments have rights of States over their natural resources, passed or are considering ABS leg is la tion. the authority of national governments to Before turning to the im ple men ta tion trends, de ter mine access to genetic resources, subject there are several other provi sions on or related to national legislation.2 Notwithstanding this to access worth noting. recognition, each Contracting Party “shall Paragraphs 6 and 7 of Article 15 also pro- endeavour to create conditions to facilitate vide that each Contracting Party shall en dea- access to ge net ic resources for en vi ron - vour to develop and carry out scientific men tal ly sound uses by other Contracting re search based on genetic resources provided Parties and not to impose restrictions that run by other Con tract ing Parties with the full counter to the objectives of this Convention” par tic i pa tion of, and where possible in, such (Article 15.2). Contract ing Parties. Most importantly, each According to Article 15 paras 4 and 5 of the Contract ing Party is bound to take legislative, Convention, access, where granted, shall be administrative or policy measures with the on mutually agreed terms and subject to prior aim of sharing in a fair and equitable way the informed consent (PIC) of the Con tract ing results of research and development and the
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bene fi ts arising from the commercial and other full, relevant information to indigenous and uti li za tion of genetic resourc es with the Con- local communities involved or affected and tracting Party providing such resources. Such by taking the appropriate steps to see that shar ing shall be upon mutually agreed terms per mis sion is obtained prior to initiating any (Article 1 paras. 6 and 7). activity. Article 8(j) of the CBD requires that Parties “shall, as far as possible and as appropriate” Implementation issues of note and “subject to [their] national legislation, Multilateral implementation respect, preserve and maintain knowledge, At its fi fth meeting in May 2000, the Confer- innovations and practices of indigenous and ence of the Parties (COP) established the Ad local communities embodying traditional Hoc Working Group on Access and Benefi t lifestyles relevant for the conservation and Sharing. In October 2001, the Working Group sustainable use of biological diversity, and created the draft “Bonn Guidelines” for state promote their wider application with the ap- parties developing national legislation to reg- prov al and involvement of the holders of such ulate access to genetic resources and benefi t- knowledge, innovations and practices and sharing. The Bonn Guidelines were adopted encourage the equitable sharing of benefi ts by the COPVI in April 2002. Though they are arising from the utilization of such knowl- not binding, they still have a great deal of edge, innovations and practices.” Article 10 potential to infl uence how countries develop also contains provisions related to indig e nous their access laws. Of relevance to indigenous and local communities. Article 10(c) re quires and local communities, the Bonn Guidelines Parties to protect and en cour age customary recommend that “the prior informed con- use of biological re sourc es in accordance with sent of indigenous and local com muni ties… traditional cultural practices that are com- should be obtained, in accordance with their pat i ble with conservation or sustainable use traditional practices, national access policies re quirements, and (d) to support local pop u- and subject to domestic laws” when parties lations to develop and implement remedial seek access to their genetic resources and as- ac tion in degraded areas where biological sociated knowledge.4 This is signifi cant be- di ver si ty has been reduced. Regulating access cause the CBD does not explicitly state that is one mechanism through which these pro- it is necessary to get the PIC of constituent vi sions can be implemented. Some countries communities. that have developed access legislation have, At its sixth meeting, in discussing access for example, provided for the PIC of relevant to genetic resources, the COP agreed to en- indigenous and local communities in order cour age disclosure of the country of origin for an access permit to be granted. Genetic and of traditional knowledge in IPR ap pli - resources professionals must be careful in ca tions. There was long discussion on collecting and using resources associated whether or not the scope of Guidelines would with indigenous and local communities. First, include derivatives and products. Ultimately, GR professionals must familiarize them selves the COP agreed to include them in the in- with regional or national policies, laws or dicative list of mutually agreed terms (MATs) regulations applicable in their country on the and to remove them from the provision on collecting, use and/or man age ment of the scope, adding a reference to benefi ts arising genetic resources as so ci at ed with in dig e nous from the commercial and other utilization of and local com mu ni ties and/or related knowl- genetic resources. The COP decided to recon- edge, innovations and practices. Even in the vene the Working Group on ABS to work on absence of national regulations, GR profes - use of terms, other ap proach es, measures to sion als should proceed carefully by pro vid ing sup port com pli ance with prior informed
SUSAN BRAGDON (EDITOR) 48 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
consent (PIC) and MATs, and capacity-build- custom ary laws and practices, and the feasi- ing needs. The Bonn Guidelines were ad- bility of an internationally recognized cer- opted and con tain sections on: tifi cate of origin as evidence of PIC and MAT. (1) general provisions, including key fea- It also requested Parties to send the CBD tures, use of terms, scope, relationship Secretariat information on national mecha- with rele vant inter na tion al regimes and nisms for obtain ing PIC of indigenous and objec tives; local commu ni ties. To help Parties in under- (2) roles and responsibilities in ABS, including: standing their IPR options in ABS ar range - Contracting Parties that are countries of ments, the COP invited WIPO to prepare a origin of genetic resourc es, or other Parties technical study on methods for requiring that acquired resources in accordance with disclosure of genetic resources, the country the Convention; users, in the im plemen t- of origin, traditional knowledge and its ation of MATs; providers; Contracting source, and evidence of PIC. Par ties having users in their ju ris dic tion The Guideline objectives include con trib - and measures to support com pliance with uting to poverty alleviation and supporting PIC and MATs; national focal points; and human food security. This will be important na tion al competent authorities; if countries use the guidelines as part of the (3) participation of stakeholders; process of developing a consistent ABS strat- (4) steps in the ABS process, in cluding: an e gy. The Guidelines include language in re- overall strategy; identifi cation of steps; la tion ship to other instruments saying that PIC, containing competent authorities, the guidelines’ ap pli ca tions should be sup- timing and deadlines, specifi cation of use, portive of relevant international agreements proce dures for obtaining PIC and process; and without prejudice to ABS provisions of MATs, containing basic requirements and the IU (now IT). an indicative list of typical MATs; and ben- Capacity-building for ABS also received e fi t-sharing, mentioning types, timing and a lot of attention and draft elements were distribution of benefi ts and mechanisms agreed upon. The Working Group also called for benefi t-sharing; and upon the Secretariat to convene an open- (5) other provisions, including incentives, ended intersessional working group to fi - ac count abil i ty in im ple ment ing ABS nal ize these elements. The meeting was held arrange ments, national monitoring and in December 2002 and a draft capacity build- reporting, means for verifi cation, dispute ing action plan was adopted for consideration settlement and remedies. by the next meeting of the Conference of the Appendix I of the Guidelines suggests el e- Parties in 2004. Many of the capacity-build ing ments for material transfer agree ments, while components relate to legal and policies mea- Appendix II outlines monetary and non-mon- sures and may pro vide a good op por tu ni ty e tary benefi ts. for countries and institutions to build the With regard to intellectual property rights skills necessary to develop ABS strategies that and access, in the same decision adopting the link the obligations and objectives stemming Guidelines, the COP also invited: Govern - from the IT and the CBD. ments to encourage disclosure of the country The World Summit on Sustainable De vel - of origin of genetic resources or traditional opment held in Johannesburg in the fall 2002 knowl edge in IPR applications, where the called for the devel op ment of an inter na tion al subject matter of the application concerns or regime on benefi t-sharing arising out of the makes use of either of them in its de vel- utilization of genetic resources. Part of the op ment. The COP also requested informa- impetus for this initiative was the emphasis tion-gathering and analysis on the role of in the Bonn Guidelines for “user” provisions
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in ABS regimes emphasizing the interactive • Access reg u la tions: they specifi cally aim nature of ABS and the need for mutual re in - at estab lish ing conditions on access for force ment. In PGRFA access is more ac cu - genetic resources. Few regu la tions in rate ly characterized as “ex change” given the force fall within this category; e.g., the inde pen dence of all countries and that all are Philip pines Executive Order 247 (1995), both po ten tial ly sources and users of PGRFA. Deci sion 391 of the Andean Group (1996), The Open-ended Ad Hoc Working Group on in clud ing the im ple ment ing reg u la tions Ac cess and Benefi t Sharing of the CBD met is sued in some of the Andean countries, in March 2003. The Working Group consid- and Bra zil ian Provisional Measure No. ered the WSSD recom men da tion to be for an 2.126 (26 April 2001). in ter na tion al regime on access and benefi t- A common feature of access reg u la tions sharing. While there is polarization on the is their broad scope: they apply to genetic need for and desirability of a regime, and its re sourc es in all sectors of biodiversity, wheth- legal nature, it seems clear that this issue will er maintained in in situ or ex situ conditions. be front and center in CBD discussions, at Such regu la tions and those dealing more least in the near-term. gener al ly with genetic resources, such as the The Conference of the Parties has also Biodiversity Law of Costa Rica, nor mal ly re quest ed all Parties to identify a national re af fi rm the principle of na tion al sovereignty, focal point for ABS. The list of focal points is establish prior informed consent procedures car ried on the CBD web page and is available and specify the conditions for the granting of in hard copy from the Secretariat. It will be permits. Among such provisions the fol- impor tant for these focal points and others in low ing obligations are generally established the position of making ABS policy and deci - on the party having access: sions to understand the differences between • full information about new products and/ PGRFA and other biodiversity. or knowledge developed from ac cessed materials National implementation • priority access by the providing coun try to The provisions of the CBD relating to access such new products and/or knowl edge have been implemented at the national level • a share in fi nancial and other benefi ts de- through three different types of regulations:5 rived from the com mer cial exploitation of • Environmental laws: they generally accessed ma te ri als charge a competent national authority • obligatory deposit of a specimen of each to examine the issue and provide specifi c accession guidelines or regulations in the future. • transfer to third parties only after These laws are only “enabling” in nature au tho ri za tion (e.g. the laws adopted in Australia and • involvement of local scientists in some African countries6); col lect ing/research. • Sustainable development, nature conser - Though there is little evidence about the vation, national parks, sectoral and bio- implications of the access regu la tions en- diversity laws: this kind of law gen eral ly act ed so far on the access to and research on contain access provi sions more detailed genet ic resources, concerns have arisen than the laws of the fi rst type.7 Most of about their possible negative impact on col- these laws estab lish the principles of mu- lecting and research activities, including by tually agreed terms and prior informed the CGIAR International Centres. In the case consent for access, in some cases in great of the Philippines, for in stance, the local detail (e.g. Biodiversity Law of Costa Rica, research community has strongly criticized Law No. 7788 of 1998); the access regime as “too tedious, too costly,
SUSAN BRAGDON (EDITOR) 50 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
too time consuming, and too broad, encom - ul ti mate goal of developing a fl owchart of passing activities that do not have commer- de ci sion-making points in ABS decisions and cial prospects and thus frustrating efforts to the information needed to access options at bet ter understand and conserve the coun- each point. The United Nations University is try’s biodiversity”8. ac tive ly involved in ABS case studies in the The implementation of the Andean Group Pacifi c region; the Foundation for In terna - regulations has also raised serious concerns. tion al Environment Law and Development No distinction is made according to the type and SPDA (Sociedad Peruana de Derecho Am- of biodiversity involved, the genetic resourc es biental) is involved in assessing the im pact of held in situ and in ex situ conditions are sub- the Andean Pact regime on actual ac cess ject to the same substantive provisions, com- decisions and the fl ow of benefi ts. A more pliance with the regulation is burdensome, complete list of initiatives can be found on particularly for small companies and for re- the CBD website (www.biodiv.org). search institutions, and the regulations retro - ac tive ly apply to any collected materials.9 Agrobiodiversity Multilateral im plemen ta tion Article 9: Ex situ conser vation The COP has repeatedly noted the impor- In Article 9 the Treaty addresses the issue tance and distinct characteristics of agrobio- of ex situ conservation “predom i nant ly for diversity. Consequently, its decisions10 have the purpose of comple ment ing in situ mea- supported the revision of the IU to bring it sures”, requiring that ex situ conservation into harmony with the CBD and have led to be preferably under tak en in the country of the es tab lish ment of a programme of work origin of the genetic resources, including spe cifi cal ly addressing agrobiodiversity. The measures for the recovery and rehabilitation overall aim of the programme of work is to of threatened species and for their rein tro - promote the objectives of the Convention duction into their natural habitats under in the area of agricultural biodiversity. The appropriate conditions. programme of work aims to: In terms of collecting, paragraph (d) re- • support the development of national strat- quires Parties to regulate and man age the e gies concerning agrobiodiversity and to col lect ing of resources from natural habitats promote their inte gra tion in sectoral and for ex situ con ser va tion purposes so as to not cross-sectoral plans and policies threat en “ecosystems and in situ populations • build upon existing plans of actions that of species”. GR professionals should note that have been agreed by countries such as guidelines have been prepared for the collect- the GPA ing of plants and animals at both the interna- • ensure harmony with other relevant pro- tional level and within professional societies. grammes of work under the CBD One example is the FAO Code of Conduct for • to promote synergy and coordination Plant Germplasm Collection and Transfer. amongst relevant programmes of other There are many initiatives currently un- in ter na tion al or ga ni za tions. der way to explore access regimes. The Like- The programme of work has four main Minded Group of Megadiverse countries has ele ments. The fi rst is an as sess ment op er a - declared the development of effective ABS tion al objective which aims to provide a com- regimes to be a priority and is working with pre hen sive analysis of the status and trends of UNEP/GEF and IPGRI to devel op a propos al the world’s agrobiodiversity and of their un- for case studies. IPGRI has also launched a derly ing causes, as well as local knowledge project doing research and holding work- and its management. The second is to “iden- shops at the subregional level with the tify management practices, technologies and
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poli cies that promote the positive and mitigate Environment Facility (GEF) has es tab lished the negative impacts of agriculture on biodi- an Operational Program and Guidelines on versity, and enhance productivity and ca pac i ty agrobiodiversity which explicitly notes the to sustain livelihoods by expanding knowl- possibility of funding for this kind of specifi c edge, understanding and aware ness of the strate gy or plan. multiple goods and services provided by the different levels and functions of ag ri cul tur al Intellectual Property Rights biodiversity.”11 The third element ob jec tive is Relevant provisions to strengthen the capacity of farm ers, indige- Article 16 concerns technology transfer and nous and local com mu ni ties to man age sus- is the only article that explicitly mentions tainably ag ri cul tur al biodiversity so as to intellectual property rights. The article is increase their benefi ts and to promote aware- complex and ambiguous and full of internal ness and responsible action. The fourth ele- cross-references. Because of its ambiguity, ment is to support the in stitu tion al framework Article 16, perhaps more than others, can and policy and planning mechanisms for the only really begin to take shape through mainstreaming of agricultural biodiversity the experience established through imple - into agricultural strategies and action plans menta tion. Perhaps the most relevance to the and into wider strategies and plans for biodi- GR professional will come from how these versity in general. provisions in light of the CBD objectives The COP has also launched an In terna - can be implemented at the national level tion al Initiative for the Con ser va tion and in harmony with the TRIPS Agreement (see Sustain able Use of Pollinators to promote Chapter 6). co or di nat ed action world wide to: Article 16 addresses access to and trans- • monitor pollinator decline fer of technologies that are relevant to the • address the lack of taxonomic in for ma tion conser va tion and sustainable use of bio- on pol li na tors logical diversity or make use of genetic re- • assess the economic value of pol lina tion sources and are subject to intellectual and the economic impact of pollinator property rights. The article aims at striking de cline a balance between the need to secure access • promote the conservation and res to ra tion and technology trans fer on the one hand, and sustainable use of pol li na tor di ver si ty and the respect of intel lec tu al property in ag ri cul ture and related ec o sys tems. rights, on the other. In such a case, the access and transfer shall be pro vid ed on terms National implementation which recognize and are consis tent with the Most of the countries that have sub mit ted “adequate and effective protec tion” of intel- national reports to the COP have included lectual property rights (Ar ti cle 16.2). How- references to ag ri cul tur al biodiversity. Of ever, the Contracting Parties shall cooperate the 111 national reports thus far submitted, “subject to national legislation and interna- 58 provide fairly signifi cant coverage of ag- tional law in order to ensure that such rights ri cul ture and/or agricultural biodiversity.12 are supportive of and do not run counter to The scope of coverage is variable, however, its objectives” (article 16.5). with different countries focusing on dif- In addition, each Contracting Party under - ferent issues. Very few countries describe takes to take legislative, ad min is tra tive or comprehensive policies, programmes or policy measures, as ap propri ate, with regard strategies for agricultural biodiversity, to intellectual property, the handling of bio- though a number do indicate they plan technol o gy and the distribution of its ben efi ts, to develop these.13 In addition, the Global with the aim that:
SUSAN BRAGDON (EDITOR) 52 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
• Contracting Parties, in particular those Implementation issues of note that are de velop ing countries, which In relation to intellectual property rights, the sup ply ge net ic resources are provided ac- Bonn Guidelines adopted at the 7th meeting of cess to and transfer of technology which the Conference of the Parties to the CBD: makes use of those resources, on mutu- • Invite Gov ern ments to encourage dis- ally agreed terms, including technology clo sure of the country of origin of genetic protected by patents and other in tel lec tu al re sourc es or traditional knowledge in IPR property rights, where necessary, through ap pli ca tions, where the subject matter of the provi sions of Arti cles 20 and 21 and the application concerns or makes use of in accor dance with inter na tion al law and either of them in its development con sis tent with para graphs 4 and 5 of • Request information gathering and anal- Article 16 (Article 16.3) ysis on the role of customary laws and • the private sector fa cil i tates access to, joint practic es, and the feasibility of an in terna - development and transfer of tech nol o gy tion al ly recognized certifi cate of origin as referred to in Article 16.1 for the bene fi t ev i dence of PIC and MTA of both gov ern men tal institutions and • Request information on national mech a- the private sector of developing coun- nisms for obtaining PIC of indig e nous and tries and in this regard shall abide by the local com mu ni ties obli ga tions included in paragraphs 2 and • Invite WIPO to prepare a technical study 3 of Article 16 (Article 16.4) on methods for requiring disclosure of • an effective participation in bio techno - ge net ic resources, the country of origin, log i cal research activities is ensured to tra di tion al knowledge and its source, and those Con tracting Parties, especially evidence of PIC devel op ing countries, which provide • Encourage participation of indigenous the genet ic resourc es for such research and local communities. (Article 19.1) • It is promot ed, and advanced priority Article 8: In situ conser vation access is given on a fair and equitable Relevant provisions basis by Contracting Parties, especially Article 8 of the Convention requires each Con- devel op ing countries, to the results and tracting Party to implement several measures, ben e fits arising from bio tech nol o gies in order to ensure the in situ conservation of based upon genetic resources provided genetic resources (see Box 5.1), but leaves a by those Contract ing Parties. Such ac- great degree of discretion to each Party. This cess shall be on mu tual ly agreed terms article provides the main set of Convention (Arti cle 19.2). obligations to con serve biological diversity Finally, each Contracting Party shall, di- and rec og niz es in situ conservation as the pri- rectly or by requiring any natural or legal ma ry approach for biodiversity con ser va tion. person under its jurisdiction providing any The article addresses the conservation of eco- liv ing mod i fi ed organ ism resulting from bio- systems, wild species and genetic diversity. It tech nol o gy, provide any available information also covers the in situ conservation of domes- about the use and safety regulations required ticated plant varieties and animal breeds. As by that Con tracting Party in handling such discussed in section II above, Article 8(j) ad- organisms, as well as any available in for- dresses in dig e nous and local communities. ma tion on the po ten tial adverse impact of the spe cif ic organisms con cerned to the Con- Implementation issues of note tract ing Party to which those organisms are The Conference of the Parties will be consid- to be introduced (Ar ti cle 16.4). ering a Global Strategy for Plant Conservation
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Box 5.1. In situ conservation (Article 8) Each Contracting Party shall, as far as possible and as appropriate: (a) Establish a system of protected ar eas or areas where special measures need to be taken to conserve biological diversity; (b) Develop, where necessary, guide lines for the selection, establishment and manage ment of protected areas or areas where special measures need to be taken to conserve biological diversity; (c) Regulate or manage biological re sourc es important for the conservation of bio log i cal diver si ty whether within or outside protected areas, with a view to en sur ing their conservation and sus tain able use; (d) Promote the protection of eco sys tems, natural habitats and the main tenance of viable pop u la tions of species in natural surroundings; (e) Promote environmentally sound and sustainable development in areas adja cent to pro tect ed areas with a view to furthering protection of these ar eas; (f) Rehabilitate and restore degraded ecosystems and promote the recovery of threat ened spe cies, inter alia, through the development and implementation of plans or other management strategies; (g) Establish or maintain means to reg u late, manage or control the risks as so - ciat ed with the use and release of living modifi ed organisms resulting from bio tech nol o gy which are likely to have ad verse environmental impacts that could affect the con ser va tion and sustainable use of biological diversity, tak ing also into ac count the risks to hu man health; (h) Prevent the introduction of, control or eradicate those alien species which threat en ec o sys tems, habitats or spe cies; (i) Endeavour to provide the conditions needed for compatibility between present uses and the conservation of bi o log i cal diversity and the sustainable use of its com po nents; (j) Subject to its national legislation, re spect, preserve and maintain knowl edge, in no va tions and practices of in dig e nous and local communities em bod y ing tradi tion al lifestyles rele vant for the conservation and sustainable use of bi o- logi cal diversity and promote their wider application with the ap proval and in volve ment of the hold ers of such knowledge, innovations and practices and encour age the equitable sharing of the benefi ts arising from the utilization of such knowledge, innovations and prac tic es; (k) Develop or maintain necessary leg is la tion and/or other regulatory pro vi sions for the pro tec tion of threatened species and populations; (l) Where a signifi cant adverse effect on biological diversity has been de ter mined pur su ant to Article 7, regulate or man age the relevant processes and cat e go ries of ac tiv i ties, and (m) Cooperate in providing fi nancial and other support for in situ con ser va tion out- lined in subparagraphs (a) to (l) above, particularly to developing coun tries.
SUSAN BRAGDON (EDITOR) 54 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
at its 6th meeting in April 2002. The Strategy International imple men ta tion generally aims to provide a framework to facilitate GR professionals may wish to note that the harmony between existing initiatives aimed CBD provides for periodic meetings of the at plant conservation, to identify gaps where Parties to monitor and make decisions re- new initiatives are required and to promote garding imple men ta tion and these may have mobilization of the neces sary resources. relevance to PGRFA. In addition, the CBD A number of subobjectives are identifi ed, provides for a set of institutions to support including: the elaboration of its obligations. In ad dition • understanding and docu ment ing plant to the Secretariat and the Con fer ence of the diver si ty by monitoring the status and Parties, there is also a Subsidiary Body on Sci- trends in global plant diversity and its entifi c, Tech ni cal and Technological Advice, con ser va tion, iden ti fy ing plant species at a Clear ing house Mechanism for Scientifi c risk, de vel op ing accessible information and Technical Cooperation and a fi nancial sys tems and promoting research mechanism operated by the Global Environ- • conserving plant di ver si ty by long- ment Facility. term con ser va tion, management and Since the CBD entered into force in 1993, res to ra tion of plant diversity in situ and its implementation has pro ceed ed slowly. In ex situ the CBD, gov ernments have found it diffi cult • using plant diversity sustainably by to bring together the many disciplines and strengthen ing measures to control un- policy measures needed to achieve the Con- sustain able use and by sup porting the ven tion’s objectives. Different gov ern ments de vel op ment of livelihoods based on the select different priorities from among the sustain able use of plants including the fair broad array of pos sible initiatives within the and equitable sharing of benefi ts derived scope of the CBD. Only a few specifi c nation al from this use regulations have been enacted so far to imple- • promoting education and awareness ment the provisions of the CBD. How ever, about plant di ver si ty many countries are con sid er ing leg is la tion • building ca pac i ty for the conservation of on the matter.14 plant diversity by enhancing human re- sources, physical and technological in fra- Endnotes structure and linking actors to maximize 1 The term “Contracting Parties” is used in the action and potential synergies in support Treaty to denote countries that have formally of plant con ser va tion. ratifi ed the Treaty. 2 Under the framework established by the International Undertaking on Plant Genetic Article 10: Sustainable use of Resources (IU) (1983), plant genetic resources components of biological diversity for food and agriculture (PGRFA) were deemed The sustainable use of biological di versi ty is a “common heritage of mankind” and subject to one of the Convention’s primary objectives. a system of free exchange among the parties to Article 10 is the focus of the Convention’s sus- the IU (“Plant genetic resources are a common heritage of mankind to be preserved, and to be tainable use re quire ments (though as Table freely available for use, for the benefi t of present 1 illustrates (see Chapter 1), Article 8—par- and future generations”, Preamble). The CBD ticularly subparagraphs (c) and (i)—also has substantially changed this approach, as em pha siz es sustainable use). Article 10 (b) examined below. is the key provision and requires parties to 3 For the purpose of the Convention, the “genetic adopt measures related to the use of biologi- resources being provided by a Contracting Party” are only those that are provided by Contract- cal resources to avoid or min i mize adverse ing Parties that are countries of origin of such impacts on biological diversity. resources or by the Parties that have acquired the
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genetic resources in accordance with the Conven- renewed, as appropriate. These rules apply to tion (Article 15.3). any “ex situ conservation centre”. 4 Article 29 of the “Bonn Guidelines”, UNEP/ 10 For example, see,III/11; IV/6. CBD/COP/6/6, page 20. Other relevant sections 11 DecisionV/5; http://www.biodiv.org/decisions, of the Bonn Guidelines, as far as traditional page 7. knowledge is concerned, are 17, 24(d) 42(g). 12 http://www.biodiv.org/programmes/areas/ 5 The following categorization is partially based agro/reports.asp on Lyle Glowka, 1999 (Towards a certifi cation for 13 Ibid. See also UNEP/CBD/SBSTTA/5/INF/10 bioprospecting activities. Study commissioned 14 For instance, the Organisation of African Unity by the State Secretariat for Economic Affairs). has adopted a draft model legislation covering 6 For instance, the National Environment Man- access to genetic resources which is under con- agement Act, 1994 (Law No. 13/94) of Gambia sideration in some African countries. See also the empowers the competent national authority to draft Indian Biodiversity law. prohibit or restrict any trade or traffi c in any component of biological diversity (Article 32.g). It contains a specifi c provision (Article 35) on ac- cess to genetic resources, according to which “the genetic resources of the Gambia shall constitute an essential part of the natural wealth of re- sources of the people of the Gambia”. A Council created by the law may make regulations and prescribe guidelines regarding access to the genetic resources of The Gambia, including "(1) measures regulating the export of germplasm; (2) measures for sharing of benefi ts derived from germplasm originating from The Gambia, and (3) fees to be paid for access to germplasm”. 7 For example, in Cameroon, law 94/01 of 20.1.94 sets forth rules for an integrated management, conservation and sustainable utilization of for- ests, fauna and fi sheries. It provides that genetic resources of Cameroon belong to the State. Nobody is allowed to exploit them for scien- tifi c, commercial or cultural purposes without authorization. The fi nancial or economic benefi ts resulting from their utilization are subject to a royalty to be paid to the State, at a rate and upon modalities of payment to be determined by the Minister of Finances, on the basis of proposals by the competent ministers (Article 12). 8 The research community has also criticized the need to obtain the informed consent of com- munities in whose territories research will be conducted, as “unrealistic and costly”. That requirement, however, fi nds strong support from other stakeholders. 9 According to its transitional provisions, Decision 391 applies to those persons and institutions “that possess genetic resources for which Member States are countries of origin” and obliges them to request access to the National Competent Authority. Moreover, contracts already entered into between State organizations and third parties which are not in conformity with the Decision may be renegotiated or not
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VI. Origin and movement of PGR: implications for access and benefi t-sharing policies Introduction of origin postulated by Vavilov….Our studes In the best of all worlds, good policy is based have shown that most crops indigenous to on good science. And in the best of all worlds, Africa did not arise in a centre of origin in the science is clear and unambiguous and ca- any conventional sense of a centre, and that pable of pro vid ing relevant information and the same situation is likely to have occurred insights. In the real world, however, “science” in Southeast Asia and Oceania and in South often yields to politics in policy and law-mak- America.”2 ing processes. As discussed in Chapter 5, the Con vention Technical and scientifi c considerations on Biological Diversity places great store in persist into the implementation phase, when the feasibility of iden tify ing a “country of policies must be operationalized and when or i gin” of a species or a particular genetic laws must be interpreted, implemented and re source. It is the country of origin and only enforced. If the dissonance between science that country, according to the Convention, and policy is too great, pressures can build that is entitled to negotiate and ap prove terms and eventually lead to changes in policy. of access with another party. This approach, This section seeks to establish a com mon designed pri ma ri ly to deal with rare, en dem ic scientifi c base for our discussion of policies species of potential pharmaceutical or chem- and laws by looking at certain topics that are i cal value, is of less utility when it comes to central to contemporary policy and legal dealing with domesticated species.3 The Con- de bates, inter alia, the concept of “origin” ven tion specifi es that the country of origin of (in clud ing centres of origin and di ver si ty) domesticated and cultivated species is the and the current location of ge net ic diversity, country where the species or the genetic re- the nature of con tem po rary germplasm fl ows, source (the Convention is unclear as to which and the degree of interdependence among it is) developed its distinctive properties in nations for genetic resources. in situ conditions. Given the prominence of the Vavilov Origins Cen tres of Origin, it may have ap peared to N.I. Vavilov’s legacy is a powerful one. The ne go ti a tors of the Con ven tion that identifi ca- pioneering Russian scientist postulated the tion of a country of origin of wheat, for ex- existence of eight major centres of origin of ample, would be as straightforward as cultivated plants. These centres exhibited ascertaining the country of origin of a rare tremendous diversity of a complex of crops. orchid found in the Brazilian rain forest. This While Vavilov never used the term “centre of is not the case, however. In effect, Vavilov diversity,” we now recognize that Vavilov’s postulated regions of origin (domestication) centres were indeed centres of diversity that for groups of crops; the Convention speaks in many, but not all cases, corresponded to of countries of origin for specifi c “distinctive centres of origins for groups of crops. prop er ties” of a par tic u lar crop, a far more In 1971, Jack Harlan published the fi rst precise criterion. major critique of Vavilov, putting forth the It is well known that crops were do mes - view that there were centres and “non-cen- ticat ed over vast expanses of land and over tres” of domestication, some “centres” being a long period of time.4 Pinpointing the lo ca - so large or diffuse as to render the term mean- tion where a specifi c property arose (perhaps ingless.1 Shortly thereafter he observed that 10 000 years ago) may be diffi cult or im pos - “it is be com ing increasingly apparent that si ble. Moreover, most properties come in some [crops] do not have discernible centres gradi ents—there are different shades of red either of diversity or of origin and that many ap ples, different degrees of disease re sis tance, have originated in areas outside of the centres etc. The existence of secondary centres of
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diver si ty—such as sub-Saharan Africa for that all genetic resources originally came from maize—reduces the value of using the in situ conditions, it is equally obvious that Vavilov centres as the sole tool in determining much of that diversity can no longer be found “or i gin” as used in the Convention. “in the fi eld”, and that a great deal of diversity The Vavilov legacy undoubtedly in fl u- can now be accessed from genebanks far re- enced even the negotiations on the In terna - moved from any Vavilov centre. As Table 6.1 tion al Treaty on Plant Genetic Resources for reveals, some of the best potential “custom- Food and Ag ri cul ture. In these negotiations, ers” for PGRFA are also in a position to be the del e gates established a multilateral system biggest suppliers or sellers. The implication, for some 35 crops and a num ber of forages, the lesson to be learned, is that access and obviating the need (as in the Convention) to benefi t-sharing schemes designed to regulate identify a pre cise country of origin for these current transactions need to take into account mate ri als. But, the remaining crops—hun- not so much the historical location of materi- dreds of them—will henceforth be handled als as their present location and status. under the terms of the Con ven tion on Bio- One also needs to consider the quality of logical Di ver si ty. Del e gates implicitly as- the collections and of the associated in for- sumed that satis fy ing the requirements of the ma tion that can be provided about them. Con ven tion—iden ti fy ing the country of ori- Many collections located within Vavilov gin of specifi c distinctive properties—was centres, or developing countries more gener- routinely fea si ble. Given what is known—and ally, are of rel a tive ly less utility than their what is not known—about centres and about numbers might indicate, having been com- the precise location of origin of particular promised over the years by less than adequate properties found within a domesticated crop, conservation prac tic es and facilities.5 Need one might question whether Vavilov centres for regen er a tion is often high, for example, will prove to be very useful in pinpointing an indicator that storage conditions may be locations where those specifi c proper ties fi rst poor and that diversity may have already arose. On the surface, this would appear to been lost. be a case where “the science” and the current Crop experts also believe that much of the state of knowledge were inadequately under - existing diversity has already been collected stood during the treaty-negotiating process, and is in genebanks. This is particularly the and where its limitations will become mani- case with major crops such as rice, wheat and fest as countries attempt to implement both maize. FAO estimates that 95% of the land- the Con ven tion and the Treaty. races of these crops can be found in ex situ collec tions. 6 Of course, landraces con tin ue The current location of diversity to evolve in the fi eld, giving the possibility Erna Bennett, a pioneer in the genetic re- that new ge net ic com bi na tions, or muta- sources fi eld, once jokingly re marked that if tions, of value will arise. Conversely, ge- Vavilov were to redraw his maps, he would netic erosion is also taking place, giving the have to designate Ft. Collins, Colorado, as a possi bil i ty that existing (and new) materials centre of diversity. Ft. Collins is the location will be lost. of the National Seed Storage Laboratory, one All of these considerations must be taken of the largest genebanks in the world. The ob- into account when assessing which sources servation is an ap pro pri ate one in the context are and will be most important in supplying of policy and law-making in which countries genetic re sourc es for future breeding pro- attempt to pair “access” with “benefi t-shar- grammes. Data provided here indicate, how- ing” in a manner that depends on the laws of ever, that much diversity exists and can be supply and demand. While it is certainly true easily accessed from sources outside
SUSAN BRAGDON (EDITOR) 58 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Table 10.1. Genebanks and accessions in ex situ collections, by regiona Region No. of accessions % of Total Genebanks % of Total Africa 353 523 6 124 10 Latin America 642 405 12 227 17 and Caribbean North America 762 061 14 101 8 Asia 1 533 979 28 293 22 Europe 1 934 574 35 496 38 Near East 327 963 6 67 5 Total 5 554 505 100 1308 100 CGIAR 593 191 12
a FAO. 1998. The State of the World’s Plant Genetic Resources for Food and Agriculture. FAO, Rome, Italy.
tra di tion al Vavilov centres, a situation that In terms of crops excluded from the FAO may under mine the “market” position of Treaty’s multilateral system, one of the “coun tries of origin” under the Convention. tradeoffs that negotiators made was this: they “gave up” any Treaty-mandated collective Germplasm transfers bene fi ts that would have been generated from Academic work on contemporary germplasm existing ex situ (and in situ) collections of these transfers reinforces the view that ex situ col- crops in exchange for benefi ts they hope indi - lections “in the public domain” are important vidu al countries will be able to capture from as sources of materials for both de veloped providing access bilaterally to these ma te ri als and developing countries.7 CGIAR centres, under the framework of the Convention on for example, distribute some 100 000 samples Bi o log i cal Diversity. Once again, how ev er, the per year. objective reality may intervene. Es tab lish ing There is also strong evidence that access the country of origin (as defi ned by the Con- from ex situ sources far exceeds access from ven tion) may prove diffi cult. Most ma te ri als in situ conditions, if col lecting by CGIAR may already be in storage and in the public cen tres is any indication of the overall sit- domain outside of those coun tries. And, there ua tion. 8 CGIAR centres now add substan- may be little relative demand for, or current tially fewer than 5000 accessions economic value associated with, materials (pre dom i nant ly but not exclusively from in found exclusively in in situ con di tions. situ sources) to their collec tions per year, less Given these “realities”, countries are faced than 5% of the amount that is distributed with both a number of options and a number from their ex situ holdings. of dilemmas. They may wish to consider (1) In addition, the fact that CGIAR centres how they will secure access to the materials have “restored” germplasm in recent years they need in an effi cient and cost-effective to at least 41 countries that had previously manner, and (2) how they will provide access pro vid ed the same accessions to the centres, to materials they have in a way that max i- is evidence that countries themselves are los- miz es benefi ts to themselves. These goals ing materials (and thus, would not be in a may prove to be some what contradictory in position to provide them or to benefi t from practice, leading to a third option, which is providing them). to consid er cooperative measures. This third
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 59
option assumes (1) that countries are inter - Several conclusions or inferences can be de pen dent in terms of genetic resources, and drawn from such data: (2) that access is im por tant—or will become (1) Clearly, both international and national im por tant—to all. programmes use large amounts of ma- te ri al, and modern agricultural systems Interdependence are based on genetic resources supplied No country is predominantly in de pen dent by many countries. in terms of PGRFA. For the same reason that (2) Assigning an economic value to in di vid u al few, if any, countries are the sole source of accessions would be diffi cult given the genetic resources for a particular crop, all number of accessions used and the countries depend on others, even for access number of crosses made. This diffi culty, to materials of native crops. Many countries, combined with other factors such as the however, have agricultural systems based spread of crops over 10 000 years, the chiefly on crops that were domesticated ease of dupli ca tion, and the multiplicity elsewhere, and on genetic resources sup- of sources, explains the historic absence of plied by others. a market for PGRFA as a commodity. Countries in southern Africa, for ex ample, (3) Benefi ts can be captured, however, even if fall between 65% and 100% in their de pen- the genetic resource is not directly sold as dence on main food crops that originated such as a commodity. Materials are used outside the region, with most countries ex- in breeding programmes, value is added ceeding a 90% dependency level.9 Generally, in the research process, and countries, dependency is higher for developed than for farm ers and con sum ers benefi t by hav- developing countries, though often the levels ing bet ter and more productive varieties. are remarkably similar. According to FAO, Byerlee and Traxler estimate that the It a ly has a de pen den cy level of 71–81%. The benefi ts from wheat breeding for spring country that most closely matches this level bread wheat alone in the developing is Ghana with a dependency of 70–81%.8 world were ap prox i mate ly US$2.5 bil- Dependency on crops that originated out- lion annually by the late 1980s.11 None of side of the country should not, however, be this benefi t, inter est ing ly, is accounted for confused with de pen den cy on access to those by income gen er at ed by pro vid ing access crops. As we have already seen, the source of to PGRFA. Ar gu ably the principal value genetic resources of a particular crop might of the resource is as a resource, not as a bear little relation to the region or the country commodity. One of the challenges now where the crop orig i nat ed. faced by policy-mak ers is thus how to Interdependency is graphically il lustrat ed develop appropriate policies based on by looking at the pedigrees of modern va riet ies this understanding. of major food grains, for instance. The wheat While “access” is obviously critical to cultivar, Sonalika, which was planted on over plant breeding programmes, it is also critical 6 million hectares in developing coun tries in to farmers who use improved seeds and 1990, had a pedigree drawing on ma teri als plant ing materials. Both directly and indi- acquired from no fewer than 15 coun tries.8 rectly, it is important to all countries, even to Sonalika is far from being unique. Ma jor those without active plant breeding pro- spring bread wheats (those planted on more grammes in a particular crop. There is no than 0.25 million hectares) in the devel op ing example of a country being able to develop world in 1997, on average had 50 landraces in its agri cul tur al system on the basis of reliance their known pedigree and were the result of on ei ther in dig e nous crops or on genetic re- nearly 2000 parental com bi na tions.10 sourc es sourced locally. Countries that are at
SUSAN BRAGDON (EDITOR) 60 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
all looking toward the future and are at all how well such policies and laws will achieve optimistic about or desirous of creat ing a their own objectives, in light of the fact that prosperous agricultural system must be ap- their drafting may not always have taken suf- preciative of the value of having access to fi cient account of certain “real i ties” discussed genetic re sourc es from others. in this section. How then, can future policies and laws—and im ple men ta tion of existing Conclusion international agreements—be improved to Struggles over crops, planting ma te ri als and achieve, for example, the ad mira ble goals of genetic resources, are ancient. Countries and the International Treaty?: the conservation and interest groups have long maneuvered to gain sus tain able use of PGRFA and the fair and advantage from the fl ow of genetic resources. equitable sharing of benefi ts arising out of Various strategies have been em ployed, some their use, while supporting ef fec tive manage- collective, some highly individualistic. Suc- ment of these pre cious re sourc es at all levels. cessful man age ment of PGRFA in the 21st cen- tury will certainly benefi t from a knowledge of Endnotes this history, but it will benefi t even more from 1 Harlan, J.R. 1971. Agricultural Origins: centers an understanding of cur rent realities and cur- and noncenters. Science, Vol. 174. 2 rent needs. In this section of the manual, we Harlan, J.R. 1975. Geographic Patterns of Variation in Some Cultivated Plants. J. Heredity, Vol. 66. have looked at the ability of modern science (or 3 Fowler, C. 2000. Protecting Farmer Innovation: reasonably modern theories such as Vavilov’s) The Convention on Biological Diversity and the to underpin certain ap proach es to managing question of origin. Jurimetrics, Vol. 41. access and benefi t-sharing, e.g. those of the 4 It might be pointed out that many, perhaps most, Convention on Biological Diversity and, in developing countries are not included within the relation to crops excluded from the multilater- borders of any of Vavilov’s original eight centres of origin. al system, of the International Treaty on Plant 5 FAO. 1998. The State of the World’s Plant Genetic Genetic Resources. Since plant breeders access Resources for Food and Agriculture. FAO, Rome, materials not from history books but from Italy. existing collections and sources, we asked 6 Ibid. 7 where genetic diversity can be found and Fowler, C., M. Smale and S. Gaiji. 2001. Unequal Exchange: Recent transfers of most easily obtained today. The conclusions agricultural resources and their implications we arrived at were further confi rmed by data for developing countries. Development Policy on germplasm fl ows. Finally, we looked at the Review, Vol. 19, No. 2. nature and degree of dependence that coun- 8 System-wide Genetic Resources Programme tries have on outside sources of germplasm. (SGRP) of the Consultative Group on International Strong policies and beneficial laws are Agricultural Research. 1996. Report of the Internally Commissioned External Review of the found ed on good science. Im ple men ta tion, to CGIAR Genebank Operations. IPGRI, Rome. a large extent, absolutely depends on it. Pol i- 9 Palacios, X.F. 1998. Contribution to the Estima- cies and laws predicated on anything less than tion of Countries’ Interdependence in the Area a solid factual basis contain “structural faults” of Plant Genetic Resources. Background Study that will lead to unanticipated con sequenc es, Paper No. 7. FAO, Rome. 10 and probably to their own undoing at some Cassaday, K., M. Smale, C. Fowler and P. Heisey. 2001. Benefi ts from Giving and Receiving Genetic point in the future. This section has looked at Resources: The case of wheat. Plant Genetic certain key issues that will affect how policies Resources Newsl. No. 127. and laws (including the new International 11 Byerlee, D. and G. Traxler. 1995. National and Treaty on Plant Genetic Re sourc es) will be International Wheat Improvement Research in implemented. In so doing, we hope to have the Post-Green Revolution Period: evolution and impacts. Am. J. Agricultural Economics Vol. 77(2). laid the ground work for a dis cus sion about
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 61
VII. The TRIPS Agreement
Relevance to genetic resources generis forms of protection which do not managers exactly correspond to a breeders’ rights Scope model (see Chapter 7 on UPOV for an ex- The TRIPS Agreement is one of the agreements ample of this type of model) to the extent of the WTO adopted in 1994 at the close of that the sui generis regime is “effective.” They the Uruguay Round of negotiations under can, for example, create systems that explic- the General Agreement on Tariffs and Trade itly deal with the issue relating to the con- (GATT). It entered into force in 1995, simul- servation and sustainable use of plant taneous with the inauguration of the WTO, biodiversity. GR professionals accessing or the creation of which was also an outcome of developing new varieties need to be aware the Uruguay Round. The TRIPS Agreement of any national laws implementing Article obliges all WTO Member countries to com- 27.3(b). Technical advice from GR profes- ply with minimum standards of protection of sionals to policy-makers may have particu- intellectual property. It does not establish a lar value here because Member States have world intellectual property right system.1 fl exibility to ensure a system that balances The Agreement covers patents, copy- the public and private interests in a manner rights, trademarks, industrial designs, geo- appropriate to the national situation and, as graphical indications, integrated circuits and noted above, to explicitly deal with issues undisclosed information. It does not specifi - relating to the conservation and sustainable cally deal with breeders’ rights (a sui generis use of plant biodiversity. The design of a sui form of protection for plant varieties). generis regime can also take into account the peculiar features of each national seed sup- Article 27.3(b): Protection of plant varieties ply system as well as the national context The Article of most direct potential relevance and the international instruments relating to GR professionals is Article 27.3(b), which to the access and use of PGR. These include deals with exclusions from patentability the CBD and the IT. and in its contents sets up a requirement for Despite the fl exibility to frame a regime the protection of plant varieties. The provi- for the protection of plant varieties and to sion states that Members may exclude from determine the scope, level and form of pro- patentability: tection to be conferred, such a regime would have to comply with the minimum stan- Plants and animals other than micro- dards established by the TRIPS Agreement. organisms, and essentially biological First, the regime would therefore need to processes for the production of plants recognize the national treatment principle or animals other than non-biological whereby like products are treated the same and microbiological processes. How- regardless of their orgin. Second, it would ever, Members shall provide for the also have to respect the most-favoured na- protection of plant varieties either by tion standard, which requires that any ad- patents or by an effective sui generis vantage accorded to nationals of a WTO system or by any combination thereof. member country has to be extended to any This provision shall be reviewed four other member country. Third, the regime years after the entry into force of the would also have to confer “effective” protec- WTO Agreement. tion. This qualifi cation—contained in the body of Article 27.3(b)—is ambiguous since Article 27.3(b) gives Member States con- no criteria are established to judge the ef- siderable fl exibility in providing protection fectiveness of the Agreement. It could be to plant varieties. They can develop sui argued that the qualifi cation goes not to the
SUSAN BRAGDON (EDITOR) 62 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
level of protection but to the availability of practices and for non-commercial govern- legal mechanisms to enforce them (as re- mental use (Article 31). The grounds on the quired by Part III of the TRIPS Agreement). basis of which such licences can be granted Finally, in the absence of an exception, the are not limited by the Agreement. protection should also be granted to variet- As noted in Chapter 2, technically there is ies of all genera and species.2 no hierarchy in types of international regimes be they trade, environment or development- Other relevant provisions oriented. Nevertheless, in practice, the WTO As an Agreement setting minimum standards trade agreements are likely to carry more for intellectual property, TRIPS may also have weight because of a dispute settlement general relevance to GR professionals involved mechanism with the possibility of sanctions. with access to and/or development of research Non-compliance with the provisions of TRIPS products or for those involved with providing may be the basis of a dispute settlement pro- technical advice to policy-makers. A familiar- cedure as established by the Dispute Settle- ity with its key provisions and how these have ment Understanding (DSU). If a violation is been interpreted by the national government determined, the complaining Member may is therefore useful. impose on the infringing Member commercial WTO Members may exclude animals and retaliatory measures.5 plants (even if genetically modifi ed), animal races and plant varieties from the patent Implementation issues of note system. They must, however, ensure protec- The Ministerial Meeting of WTO which took tion to microorganisms, and non-biological place at Doha, Qatar in November 2001 processes and microbiological processes and, adopted a Ministerial Declaration and the as noted above, plant varieties, either by Decision on Implementation-Related Issues. patents or by an effective sui generis system Each of these contains a section on the TRIPS (or some combination of both.) Agreement covering three areas: geographi- The TRIPS Agreement does not defi ne cal indications, Article 27.3(b) and technology what an “invention” is. Member States have transfer to least-developed countries. While followed different approaches on this matter, the provisions do not contain any new com- particularly in relation to biotechnological mitments in the sense of norm-creating, the inventions. Thus some (e.g. the United decision could ultimately result in a negotia- States) admit the patentability of biological tion that goes beyond the mere clarifi cation materials if claimed in isolated form. Others of existing rules.6 (e.g. Brazil, the Andean Group) require that The Ministerial Declaration acknowl- the material be genetically modifi ed in order edges that issues relating to the extension to be patentable. of the protection of geographical indications Exceptions to the exclusive rights con- to products other than wine and spirits will ferred by patents are permitted (Article 30). continue to be discussed by the TRIPS Coun- Member countries may, for instance, establish cil. It does not commit members to resolu- exceptions for research and education and, tion, however. The use of geographical as allowed in Europe, for commercial ex- indications has been an important issue for perimentation on a patented invention. They countries concerned with misappropriation may also allow parallel imports under the of high-value goods. Countries that have doctrine of international exhaustion.3 been seeking additional protection are The TRIPS Agreement specifi cally permits mainly from Asia, Europe and Africa. They the granting of compulsory licences4, such as include countries such as Thailand and In- in cases of emergency, anti-competitive dia that have complained about what they
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 63
see as a misappropriation of high-value 7 Article 71.1 deals with review of implementation goods, namely jasmine and basmatic rices. of the Agreement, including with a possible view For these countries the GI issue is important to modifying or amending it. because they can be used to promote the export of valuable products and prevent misappropriation. Article 27.3(b) was also discussed at the Doha meeting. The TRIPS Council was ulti- mately instructed to “examine, inter alia, the relationship between TRIPS, the Convention on Biological Diversity, the protection of traditional knowledge and folklore and other relevant new developments raised by members pursuant to Article 71.1”.7 No ex- plicit commitments were made with regard to traditional knowledge and folklore but its inclusion in the Ministerial Declaration indi- cates the issue is now mainstream.
Endnotes 1 The Agreement included transitional provisions that allowed developing countries and econo- mies in transition to delay its implementation, particularly in relation to the patenting of phar- maceutical and agrochemical products. However, the general transitional period for adaptation to the Agreement’s provisions expired on 1 January 2000. Least-developed countries can delay the implementation of the Agreement until 2006 and thereafter request for additional extensions. 2 Note the contrast to UPOV (see Chapter 7). UPOV 1978 does not require protection for all genera and species; UPOV 1991 does provides for transitional periods for new members (Article 3). 3 Doctrine according to which a patent holder “ex- hausts” his/her rights after the fi rst legitimate sale of the patented product in a country, region or on the international market. See article 6 of the TRIPS Agreement. 4 Compulsory licence is the authorization given by a judicial or administrative authority to a third party for the use of a patented invention, without the consent of the patentee, against payment of a compensation to the right-holder. 5 There has been so far no decision under WTO relating to Article 27.3 (b). However, the USA initiated consultations with Argentina relating to the patentability of microorganisms. See WTO document WT/DS196/1. 6 Bridges, Vol. 1, No. 1, 22 November 2001; http: //www.ictsd.org/biores/01-11-22/story3.htm
SUSAN BRAGDON (EDITOR) 64 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
VIII. UPOV
Relevance to GR managers (v) Denomination. The variety must be UPOV is a sui generis form of intellectual prop- given a denomination enabling it to be erty protection designed specifi cally for the identifi ed; the denomination must not protection of plant varieties. UPOV sets forth be liable to mislead or to cause confu- standards, including national treatment, for sion as to the characteristics, value or the granting of “breeders’ rights”. It is TRIPS identity of the new variety or the iden- compatible. There are four versions of UPOV. tity of the breeder. Until recently both the 1978 and the 1991 ver- As noted in Chapter 2, the evolution of sions were open to new members. The 1991 UPOV refl ects the general trend toward the version entered into force on 24 April 1998, strengthening of the rights granted. The technically closing the 1978 version to new growth of biotechnology and the possibility members.1 As of 1 April 2002, there are 50 of formal patent coverage created pressure States party to UPOV (Table 8.1). leading to the 1991 revision of UPOV, which: (1) Extends the rights of holders beyond the Provisions reproductive material to the harvested In order to be eligible for protection, a plant va- material and products obtained through riety must meet the following requirements: illegal use of propagating material. (i) Novelty. UPOV 1978 does not speak (2) Allows members the option to allow of novelty per se. That is introduced in “dual protection”, i.e. simultaneous pat- 1991. The variety must not—or, where ent or UPOV-style protection for the same the law of a State so provides, must not material. This had not been provided for for more than one year—have been of- under UPOV 1978. fered for sale or marketed with the con- (3) Extends coverage to cover all plant genera sent of the breeder in the State where and species. the applicant seeks protection, nor for The Convention provides for the so-called more than four years (six years in the “right of priority”. Any breeder (national or case of grapevines and trees, including a resident of a member State) may fi le his or rootstocks) in any other State. The 1991 her fi rst application for protection of a given Act makes the one-year period of grace plant variety in any of the member States. If compulsory and requires that “propagat- the breeder fi les an application for the same ing or harvested material of the variety” variety in any other member State within 12 must not have been “sold or otherwise months of the fi ling of the fi rst application, disposed of to others”. this “later” application will benefi t from the (ii) Distinctness. The variety must be clearly right of priority. distinguishable by one or more important Protection is granted after the competent characteristics from any other variety authority of the member State in which protec- whose existence is a matter of common tion is sought has ascertained that the subject knowledge. plant variety fulfi ls the above criteria. (iii) Uniformity. Subject to the variation that According to the Convention, as amend- may be expected from the particular ed in 1991, there are seven acts of exploita- features of its mode of propagation, the tion for which the breeder’s authorization variety must be suffi ciently uniform. is required: (1) production or reproduction (iv) Stability. Subject to the variation that (multiplication); (2) conditioning for the may be expected from the particular purpose of propagation; (3) offering for sale; features of its mode of propagation, the (4) selling or other marketing; (5) exporting; variety must be stable in its essential (6) importing, and (7) stocking for any of characteristics. these purposes.
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 65
Table 8.1. States party to UPOV, as of 1 April 2001a State Date on which No. of Latest Actb of the Convention to which State became contribution State is party and date on which State member of UPOV units became party to that Act
Argentina December 25, 1994 0.5 1978 Act December 25, 1994 Australia March 1, 1989 1.0 1991 Act January 20, 2000 Austria July 14, 1994 1.5 1978 Act July 14, 1994 Belgiumc December 5, 1976 1.5 1961/1972 Act December 5, 1976 Bolivia May 21, 1999 0.2 1978 Act May 21, 1999 Brazil May 23, 1999 0.25 1978 Act May 23, 1999 Bulgaria April 24, 1998 0.2 1991 Act April 24, 1998 Canada March 4, 1991 1.0 1978 Act March 4, 1991 Chile January 5, 1996 0.2 1978 Act January 5, 1996 China April 23, 1999 0.5 1978 Actd April 23, 1999 Colombia September 13, 1996 0.2 1978 Act September 13, 1996 Croatia September 1, 2001 0.2 1991 Act September 1, 2001 Czech Republic January 1, 1993 0.5 1978 Act January 1, 1993 Denmarke October 6, 1968 1.5 1991 Act April 24, 1998 Ecuador August 8, 1997 0.2 1978 Act August 8, 1997 Estonia September 24, 2000 0.2 1991 Act September 24, 2000 Finland April 16, 1993 1.0 1991 Act July 20, 2001 Francef October 3, 1971 5.0 1978 Act March 17, 1983 Germany August 10, 1968 5.0 1991 Act July 25, 1998 Hungary April 16, 1983 0.5 1978 Act April 16, 1983 Ireland November 8, 1981 1.0 1978 Act November 8, 1981 Israel December 12, 1979 0.5 1991 Act April 24, 1998 Italy July 1, 1977 2.0 1978 Act May 28, 1986 Japan September 3, 1982 5.0 1991 Act December 24, 1998 Kenya May 13, 1999 0.2 1978 Act May 13, 1999 Kyrgyzstan June 26, 2000 0.2 1991 Act June 26, 2000 Mexico August 9, 1997 0.75 1978 Act August 9, 1997 Netherlands August 10, 1968 3.0 1991 Actg April 24, 1998 New Zealand November 8, 1981 1.0 1978 Act November 8, 1981 Nicaragua September 6, 2001 0.2 1978 Act September 6, 2001 Norway September 13, 1993 1.0 1978 Act September 13, 1993 Panama May 23, 1999 0.2 1978 Act May 23, 1999 Paraguay February 8, 1997 0.2 1978 Act February 8, 1997 Poland November 11, 1989 0.5 1978 Act November 11, 1989 Portugal October 14, 1995 0.5 1978 Act October 14, 1995
SUSAN BRAGDON (EDITOR) 66 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Table 8.1. (cont.)
State Date on which No. of Latest Actb of the Convention to which State became contribution State is party and date on which State member of UPOV units became party to that Act
Republic of January 7, 2002 0.75 1991 Act January 7, 2002 Korea Republic of October 28, 1998 0.2 1991 Act October 28, 1998 Moldova Romania March 16, 2001 0.2 1991 Act March 16, 2001 Russian April 24, 1998 0.5 1991 Act April 24, 1998 Federation Slovakia January 1, 1993 0.5 1978 Act January 1, 1993 Slovenia July 29, 1999 0.2 1991 Act July 29, 1999 South Africa November 6, 1977 1.0 1978 Act November 8, 1981 Spainh May 18, 1980 1.5 1961/1972 Act May 18, 1980 Sweden December 17, 1971 1.5 1991 Act April 24, 1998 Switzerland July 10, 1977 1.5 1978 Act November 8, 1981 Trinidad and January 30, 1998 0.2 1978 Act January 30, 1998 Tobago Ukraine November 3, 1995 0.5 1978 Act November 3, 1995 United Kingdom August 10, 1968 5.0 1991 Act January 3, 1999 United States of November 8, 1981 5.0 1991 Actj February 22, 1999 America Uruguay November 13, 1994 0.2 1978 Act November 13, 1994
a Source: www.upov.int (UPOV Web site). b “1961/1972 Act” means the International Convention for the Protection of New Varieties of Plants of 2 December 1961, as amended by the Additional Act of 10 November 1972; “1978 Act” means the Act of 23 October 1978, of the Convention; “1991 Act” means the Act of 19 March 1991, of the Convention. c With a notifi cation under Article 34(2) of the 1978 Act. d With a declaration that the 1978 Act is not applicable to the Hong Kong Special Administrative Region. e With a declaration that the Convention of 1961, the Additional Act of 1972, the 1978 Act and the 1991 Act are not applicable to Greenland and the Faroe Islands. f With a declaration that the 1978 Act applies to the territory of the French Republic, including the Overseas Departments and Territories. g Ratifi cation for the Kingdom in Europe. h With a declaration that the Convention of 1961 and the Additional Act of 1972 apply to the entire territory of Spain. j With a reservation pursuant to Article 35(2) of the 1991 Act.
The above-mentioned rights may be ex- has had no reasonable opportunity to exer- ercised in respect of the propagating mate- cise his or her right in relation to the propa- rial, and also in respect of the harvested gating material. material (including whole plants and parts The breeder’s right extends, in addition of plants), provided that the latter has been to the protected variety itself, to varieties obtained through the unauthorized use of which are not clearly distinguishable from propagating material, and that the breeder the protected variety, which are “essentially
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 67
derived” from the protected variety,2 and those whose production requires the re- peated use of the protected variety. This issue is dealt with in the 1991 UPOV. As in the case of UPOV 1978, under UPOV 1991 the underlying genetic resource embod- ied in a protected plant variety is freely avail- able to third parties for the purpose of breeding (“breeders’ exemption”). This is crucial for the further improvement of exist- ing varieties. On the other hand, under UPOV 1978 farmers were permitted to save seed for re-use in their exploitations. UPOV 1991 made this exemption optional for members. Member States which are party to the 1991 Act may except farm-saved seed from the breeder’s right, within reasonable limits and subject to safeguarding the legitimate inter- ests of the breeder. Some States have chosen to give farmers an unconditional right to re- plant seed from their previous harvest, while others have limited this right to certain crops or to small farmers.The UPOV Convention also allows access to and the use of protected material without the consent of the title- holder in cases of public interest, against an equitable remuneration.
Endnotes 1 Although new members to UPOV can only join the 1991 Act, many countries still remain obliged under the 1978 Act of the Convention. 2 A variety which is essentially derived from a protected variety and which fulfi ls the criteria of novelty, distinctness, uniformity and stability, may be the subject of protection by a third party but cannot be exploited without the authoriza- tion of the breeder of the original variety. The concept of essential derivation applies to varieties which are predominantly derived from another variety and which, except for the differences that result from the act of derivation, conform to the initial variety in the expression of the essential characteristics that result from the genotype or a combination of genotypes of the initial variety (Article 14.5 of the UPOV Convention, 1991 Act).
SUSAN BRAGDON (EDITOR) 68 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
IX. Phytosanitary and biosafety measures
Relevance to genetic resource uniformity in crops has accentuated the po- managers tential effect of diseases. The potato famine in The movement of PGRFA typically involves Europe and North America in the 19th century small quantities of living materials—packets is a famous example. The fungus, Phytophthora and packages as opposed to truck or ship infestans, completely wiped out potato crops loads. Nevertheless, such transfers are regu- and was responsible for the death by starva- lated by international and national law de- tion of 1 million and the emigration of another signed to prevent the introduction of disease 1.5 million poor people in Ireland alone.1 and pests and to minimize the threat posed to In a similarly important vein, the intro- native plants and animals from exotic species. duction of infections to collections of germ- GR professionals involved with accessing and plasm can be highly detrimental to the distributing PGRFA across national boundar- viability of plant material in both the short ies need to be familiar with the international and long terms. Infected germplasm from and national regulations relevant to this genebanks can corrupt the results of research, transfer. GR professionals who also provide characterization and evaluation studies, and advice to ministries of health and agriculture bring about genetic erosion in genebanks, must also be aware of the sensitivities and multiplication plots and other fi eld sites.2 The issues related in particular to biosafety and consequences of such failures in PGR conser- genetically modifi ed organisms. vation and research are, of course, grave, There are three principal international especially for important collections contain- agreements in this area that are relevant to ing a large part of the world’s diversity of genetic resource managers, research directors specifi c crop species. and national policy-makers: the Interna- tional Plant Protection Convention, the World Although less prominent, alien invasive Trade Organization’s Sanitary and Phytos- species are also of concern because of their anitary Agreement, and the Cartagena Pro- far-reaching effect on natural ecosystems. tocol on Biosafety. This Chapter looks at each, Numerous plant species, often crop plants or briefl y, and notes instances where policy is ornamentals, have been transported through- fl uid and where the relationship between out the world by humans. Their attractive agreements is less than certain. While all of characteristics frequently include adaptabil- these agreements purport to be based on “sci- ity and hardiness. Invariably as humans have ence”, it should be noted that political and colonized and re-colonized more remote economic considerations are never far below places (oceanic islands are some of the most the surface in any discussion of how transfers notable examples) their chosen plants have of agricultural produce and products, seeds, expanded rapidly into delicately balanced planting materials, etc., will be regulated. native ecosystems to the detriment of native species. Species of pine, guava, Passifl ora, Phytosanitary measures and why they Leucaena, Cecropia, Rhododendron, Rubus, are important Miconia, etc. are just a few of the burgeoning The distribution of plant genetic resources numbers of invasive species which have (PGR) brings with it risks to plant health, spread around the world and contributed biological diversity, and potentially human signifi cantly to the loss of biological diver- health too. Up to the present day, the overrid- sity. As an extension of this phenomenon, ing concern in the movement of living plant genetically modifi ed organisms have been material is the parallel spread of diseases into recognized as a vector or a new form by new areas and their damaging impact on which foreign and potentially invasive genes agricultural production. Increasing genetic may be introduced into a new environment.
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The benefits of introducing new germ- National and international plant plasm to a continent, country or province, protection regulations therefore, must be weighed against the risks National phytosanitary regulations posed and the costs of managing such risk. Almost all countries regulate incoming plant Levels of risk differ with the origin, age, vol- material because of the risk of pests and ume, type and identity of plant material and pathogens for agriculture. National phytos- the characteristics of the receiving territory or anitary regulations are in place in compliance body. Vegetative propagules, especially where with the IPPC. They usually: roots and soil are included, pose a greater risk (1) Specify prohibitions than seeds in transmitting pathogens.3 The (2) Grant exceptions for scientifi c purposes nature of the packing material also can in- (3) Require import permits crease the risk of transmitting disease. (4) Require phytosanitary certifi cates and/or All such risks are alleviated through quar- certifi cates of origin antine measures: regulating the form and (5) Stipulate inspections upon arrival nature of incoming material, eliminating (6) Prescribe treatment upon arrival to elimi- high-risk material or subjecting it to quaran- nate risks tine and therapy. These controls are exerted (7) Prescribe quarantine, post-entry quaran- 4 at a national level. However policy has ex- tine, isolation or other safeguards. isted at an international level, since at least Both small assignments of germplasm the 19th century, with the aim of coordinating and bulk shipments of commercial material phytosanitary measures to improve bio- involve a potential risk. There are, however, safety over wider areas. Existing legislation important differences between the two. is largely focused on transboundary move- Germplasm assignments are generally small ment and quarantine procedures. In terms of and have a relatively high value. The costs of applying therapy and testing procedures plants, there are three main agreements of are, therefore, more reasonably absorbed. relevance: the International Plant Protection However, additional precautions may be Convention (IPPC) which is, to date, the most necessary where either the germplasm itself important and the oldest international agree- or the area of origin is poorly studied from ment, the World Trade Organization (WTO)– a pathological perspective. Detection of Sanitary and Phytosanitary (SPS) agreement, poorly characterized pathogens, particu- and the Cartagena Protocol on Biosafety. In- larly viruses, requires specialized tools. The vasive species are poorly regulated but their procedure of exporting germplasm should, control is a requirement of signatories to the therefore, be specifi c to the species. A joint Convention on Biological Diversity (CBD). FAO–IPGRI programme is set up to generate The aims and main features of national crop-specifi c guidelines for disease-indexing and international regulations are summa- and other phytosanitary measures, includ- rized below. In brief, the IPPC provides an ing the listing of important pests and dis- international framework for the harmoniza- eases of concern. The guidelines are focused tion of national phytosanitary measures. The specifi cally on the movement of germplasm WTO-SPS aims at preventing the misuse of and are intended to provide scientifi c infor- phytosanitary regulations as a barrier to trade mation to national quarantine authorities and works closely with the IPPC. The Carte- and to scientists wishing to exchange germ- gena Protocol on Biosafety has a wholly dif- plasm (Table 9.1). They are not intended for ferent function. Its aim is very specifi c: to commercial shipments of seeds or other safeguard biodiversity from the potential plant material and they have no offi cially dangers of GMOs. recognized status.
SUSAN BRAGDON (EDITOR) 70 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Table 9.1. Crops covered in the series of published FAO/IPGRI Technical Guidelines for the Safe Movement of Germplasm Allium spp. Eucalyptus Small grain temperate cereals Cacao Grapevine Stone fruits Cassava Legume Sugar cane Citrus Musa Sweet potato Coconut Potato Vanilla Edible aroids Small fruits Yam
International Plant Protection Convention abuse as an unnecessary barrier to trade gave This legally binding convention aims to pro- rise to more recent agreements on Technical mote legislative and other measures to control Barriers to Trade (TBT) and SPS measures. the spread of pests of plants and plant prod- The two are complementary; the fi rst sets ucts, including any organism, object or mate- down relevant technical requirements includ- rial capable of harbouring plant pests (Table ing labelling and inspection requirements, the 9.2). The secretariat is hosted by FAO and second obliges parties to base SPS measures 113 governments are party to the agreement. on science-based risk assessment. Parties are Under the Convention, provisions exist for: able to defi ne their own SPS measures, but • A national organization for plant protec- they should conform to standards adopted tion (whose responsibility it is to inspect by the commission of the IPPC. Any more plants, including those in storage, as well restrictive measures must be consistent and as to manage the safety aspects of the justifi able scientifi cally. international traffi c of plants) • Phytosanitary certifi cation The Biosafety Protocol • Phytosanitary measures In response to growing concerns about genet- • Regulation of pests. ically modifi ed organisms, parties to the CBD Amendments were adopted at the FAO adopted in January 2000 a subsidiary agree- Conference in 1997, which take account of the ment, the Cartagena Protocol on Biosafety. role of the IPPC in relation to the WTO–SPS Despite its name, this agreement is devoted Agreement. As a result a Commission and solely to the safe transfer, handling and use with a Secretariat are now formally estab- of living modifi ed organisms (LMOs—i.e. lished with the role of developing and adopt- living GMOs), particularly concentrating on ing international standards. Although the their importation and international move- standards are not legally binding, it is large- ment. It does not cover the introduction of ly through their adoption that SPS measures exotic species in general, nor other products are shaped. of biotechnology which have not been geneti- cally modifi ed. Like the CBD, the Biosafety The WTO and SPS Protocol is focused on safeguarding biologi- Since the creation of the General Agreement cal diversity, but human health is also a on Tariffs and Trade (GATT) international leg- consideration. islation has existed to protect plant, animal LMOs (with the exception of those con- or human health where it is under risk from tained in pharmaceuticals) which are new to a the introduction of traded goods. However country and are undergoing the fi rst inten- the concern that this legislation was open to tional introduction are covered by the protocol.
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Table 9.2. International Standards for Phytosanitary Measures (ISPMs) No. Title Date/Status ISPM 1 Principles of Plant Quarantine as Related to International Trade 1995, under revision (2002) ISPM 2 Guidelines for Pest Risk Analysis 1996, under revision (2002) ISPM 3 Code of Conduct for the Import and Release of Exotic Biological 1996 Control Agents ISPM 4 Requirements for the Establishment of Pest Free Areas 1996 ISPM 5 Glossary of Phytosanitary Terms 1999 ISPM 6 Guidelines for Surveillance 1997 ISPM 7 Export Certifi cation System 1997 ISPM 8 Determination of Pest Status in an Area 1998 ISPM 9 Guidelines for Pest Eradication Programmes 1998 ISPM 10 Requirements for the Establishment of Pest Free Places of 1999 Production and Pest Free Production Sites ISPM 11 Pest Risk Analysis for Quarantine Pests 2001 ISPM 12 Guidelines for Phytosanitary Certifi cates 2001 ISPM 13 Guidelines for the Notifi cation of Non-Compliance and 2001 Emergency Action ISPM 14 The Use of Integrated Measures in a System Approach for Pest 2002 Risk Management ISPM 15* Guidelines for Regulating Wood Packaging in International 2002 Suspended Trade ISPM 16 Regulated Non-quarantine Pests: Concept and Application 2002 ISPM 17 Pest Reporting Under development
Two prominent features of the protocol are: exists to allow importing countries to accept (1) the Advanced Informed Agreement (AIA) specifi ed LMOs and bypass the AIA proce- procedure, whereby importing countries dure. Meanwhile, the transboundary move- agree to receive LMOs from exporting coun- ment of LMOs–FFPs is monitored and tries, and (2) the Biosafety clearinghouse documented through a considerably less mechanism, which will act as an information demanding process. Shipment of all LMOs, exchange resource. Importantly the AIA pro- including those in transit or destined for cess excludes LMOs intended for direct use contained use, are to be identifi ed as such. as foods or feeds or for processing (known as LMOs–FFPs), LMOs in transit and those Details on the taxonomy, origin and charac- bound for contained use (contained use being teristics of donor and parent organisms, and a form of physical structure with specifi c other data on handling and storage, may also measures to prevent contact with the external be demanded. The exact details of the process environment). A simplifi ed procedure also are still under discussion.
SUSAN BRAGDON (EDITOR) 72 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
The AIA mechanism involves the notifi ca- forms of international regulations (e.g. the tion, decision-making and, if needed, the WTO) is ambiguous. The preamble of the review of decisions by countries exchanging Protocol states that obligations to other inter- LMOs that are destined for anything other national regulations remain unaltered, but than direct use as food, feed or for processing that the protocol should not be considered or for contained use. The decision-making subordinate to other agreements. process, particularly the assessment of risk, is specifi ed in some detail. Importing coun- Conclusions tries may take up to a year after notifi cation Controls on the movement of germplasm by the exporter to come to some kind of deci- are mainly geared to prevent the spread of sion. The exporter may be liable for the costs pests and diseases and are exerted through of undergoing the decision-making process. phytosanitary regulation at the national level. International policy attempts to harmonize AIA procedure these controls and ensure that their use is not employed as a barrier to trade. More recently Notifi cation by party of export conceived policy, in the form of the Cartagena (max 90 days) Î Protocol, will govern the movement of LMOs Acknowledgement of receipt through clear identifi cation of shipments and (max 270 days) Î a system of the notifi cation and decision-mak- Communication of decision ing between importers, exporters and an in- formation clearinghouse mechanism. The protocol also imposes basic require- ments for parties to ensure that measures are Endnotes in place to manage risks posed by any LMO 1 http://www.geocities.com/willboyne/ to biodiversity. This includes the imposition nosurrender/PotatCom.html . FAO. 1998. The state of the world’s plant genetic resources for of a period of observation on newly devel- food and agriculture. FAO, Rome, Italy. oped or newly introduced LMOs, according 2 Frison, E.A. 1991. Phytosanitary aspects of gene- to the life cycle of the organisms involved, bank management. Pp. 53-59 in Proc. Inter-Centre before they are put to use. Meeting on Germplasm Health and Movement, The protocol is still to come into force, and October 1990, Rome. International Board for Plant Genetic Resources, Rome. the exact form of the major elements is in the 3 Kahn, R.P. 1977. Plant quarantine: principles, process of being consolidated. To date it has methodology and suggested approaches. In W.B. been signed by almost 100 countries. Al- Hewitt and L. Chiarappa (eds.). Plant health and though the USA, Uruguay and Australia have quarantine in international transfer of genetic not signed the agreement, other major export- resources. CRC Press, Cleveland. 4 ers of GMOs have. Its relation with other Ibid.
Web site addresses of the Conventions Convention on Biological Diversity http://www.biodiv.org/ Cartagena Protocol on Biosafety http://www.biodiv.org/biosafety/ International Plant Protection Convention http://www.ippc.int/IPP/En/default-htm World Trade Organization—Sanitary http://www.wto.org/english/tratop_e/sps_e/sps_e.htm and Phytosanitary Measures World Trade Organization—Technical http://www.wto.org/english/tratop_e/tbt_e/tbt_e.htm Barriers to Trade
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X. Development and improvement of genetic resources
Relevance to genetic resource collection. Such IPR may affect or restrict the professionals ability of a genetic resources manager to Intellectual property issues may arise distribute such germplasm. in the acquisition, characterization and Intellectual property “protection” essen- distribution of germplasm. One of the tially means that third parties can be pre- inherent characteristics of germplasm is vented from producing or selling goods or that it is a tangible or real object that can services using such information without the be used consumptively like other natural title-holder’s authorization. Unlike physical resources. And like other natural resources property, intellectual property rights are issues related to ownership, issues deal- temporary, with the exception of trade secrets ing with sharing and access can arise. But (which are protectable as long as they remain germplasm is also used as a source of in- undisclosed) and trademarks, the protection formation: the genetic information found of which can be extended limitless. in the chromosomes of the nucleus and Depending on national laws, patents, one associated subcellular structures of the plant of the most important forms of intellectual or animal. This information can be employed property, may be applied to genes, cells, to develop useful synthetic compounds or as microorganisms and different classifi cations a source of desirable genetic traits. It is the of plants and animals. In some countries (e.g. latter characteristic that has combined with the United States), patent protection may scientifi c advances and led to the worldwide cover both biological materials found in expansion of intellectual property (IP) re- nature, to the extent that they have been gimes over genetic resources. isolated and purifi ed, as well as those pro- Intellectual property issues may involve duced with genetic engineering. In other formal (statutory) IPRs and/or IPRs arising countries (e.g. Brazil), however, protection from contractual obligations. Formal IPRs can not be granted with respect to biological come about as the result of an assignee or materials which preexist in nature, even if inventor fi ling an application for protection isolated. Breeders’ rights are a form of pro- of IP. The IP could be something such as an tection specifi cally conceived to protect plant invention or germplasm, and the fi ling will varieties.2 It is important to note that the need to be done under a national regulation, availability of the product for further re- such as a fi ling for plant variety protection search differs between most patent systems (PVP) under a PVP regulation or rule.1 A suc- and systems conferring plant breeders’ cessful application for PVP will lead to IPR, rights. Research exemptions allowing the usually referred to as Plant Breeder’s Rights use of a protected product tend to be quite (PBR). In addition, it is possible that specifi c narrow in patent law. Under UPOV and germplasm will have other types of IPR as- other systems of PBR, the protected varieties sociated with it, such as patent rights or a remain available for further breeding (for a trademark registration. Having patent IPR fuller discussion see Chapter 7). Also, as associated with germplasm may happen if a mentioned in Chapter 6 of this manual, developer of germplasm has used a patented countries may also develop other effective technology—such as a method or a materi- sui generis regimes for that purpose. al—in the development of a new germplasm. Intellectual property rights are normally A trademark may be associated with a par- owned by individuals and private entities. ticular identifi cation that can be valuable as Collective rights of indigenous peoples and a marketing tool. Genetic resources managers local communities3 with respect to traditional need to know whether there are formal IPR knowledge have also been recognized in some associated with germplasm that is in their jurisdictions. However, the delimitation and
SUSAN BRAGDON (EDITOR) 74 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
enforcement of such rights pose considerable Main issues conceptual and operative problems. Collective While IPRs, particularly patents, confer ex- rights can also be held on some forms of IP clusive rights with respect to the protected that are protected by copyright —for example, subject matter—which includes genetic a fi lm or video may have many copyright materials in many countries—the CBD has owners. recognized sovereign rights over genetic re- Non-statutory IP protection associated sources, including to establish conditions to with germplasm often arises from an agree- collect and subsequently use for commercial ment or contract called a material transfer or research purposes the collected materials agreement (MTA), covering the material to (see Chapter 5 of this manual). Three main be transferred, given or distributed. The MTA issues have been raised in this context: (1) will contain provisions or terms that specify the appropriation of genetic resources under certain things about the use and/or distribu- IPRs, (2) the possible limitations on access to tion of the germplasm. Germplasm does not IPRs protected materials, and (3) the recog- need to be protected by PVP or a patent or nition and protection of traditional knowl- any other formal protection, in order for its edge. All three of these refl ect the potential or distribution to be made under an MTA. It only perceived tension between private property needs to be owned or held by a genebank in rights conferred by patents or plant breed- order for distribution of material to be carried ers’ rights and the application of national out under an MTA (for a discussion of MTAs legislation aimed at achieving the goals of under the IT, see Chapter 4). the CBD. Genetic resources managers need to be aware of what is needed to implement insti- Appropriation of genetic resources under tutional IP guidelines. The GR professional IPRs involved in acquisition and distribution As indicated, patents, as conferred in some needs a clear understanding of the institu- jurisdictions, permit the appropriation of tion’s IP policy and how it is implemented. genetic materials by private entities, as such. If there is no IP policy, an understanding of In addition, a number of patents have been first, national laws, and second, interna- granted with respect to materials useful for tional legal obligations—such as those arising agriculture or medicine known to and widely under the IT—relevant to the institution’s used by indigenous and local communities germplasm including plans for collecting and (such as turmeric, Bolivian quinoa and the distribution, is necessary to develop the ap- Amazonian “ayahuasca”)5. All this has raised propriate policies and procedures. The GR concerns in many developing countries about managers responsible for access and distribu- a possible confl ict between IPRs, as recog- tion will likely be responsible for making sure nized under the TRIPS Agreement, and the that the necessary procedures—whether provisions of the CBD6 on access to and use GAA, MTA or another type of agreement— of genetic resources. are followed.4 At a practical level, this means The need to develop an interface between that managers responsible for the access and IPRs and access regulations, in order to distribution of genebank material in the avoid possible misappropriation of genetic genebank need a database of IPR information resources, has led some countries to impose relevant to accessions in the genebank. They limitations on the IPR protection of genetic also need an understanding of the implica- resources and associated knowledge,7 to the tions of this information for the genebank’s establishment of special conditions for the ability to distribute particular accessions of application and granting of IPRs relating to germplasm. biological materials,8 to the provision of
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 75
compulsory licences,9 or other conditions to it under patents, breeders’ rights or other encourage competition practice. However, modalities of IPRs. given the territoriality and independence of Only a few countries have so far ad- patent rights, such limitations and condi- dressed the complex conceptual and opera- tions usually only prevent the granting or tional problems involved in the recognition lead to the cancellation of IPRs in the coun- of the rights of indigenous and local com- try where the limitations or conditions were munities over their knowledge.11 applied, but not in foreign jurisdictions. Acquisition and use of technology: Limitations to access relevance to GR access and distribution Another issue that has generated concern is Genetic resources managers need to acquire the impact that the appropriation of genetic new material in such a way that it can be materials under IPRs, where admitted, may distributed in accordance with institutional 12 have on the access to such materials for IP policy at some future date. It is neces- further research and development. Those sary to know if technology has been used concerns have been fueled by the expan- to develop the material to be acquired and sion of IPRs, particularly patents, to living whether the technology has formal or non- organisms (including genes and any subcel- statutory IPR associated with it. If there are 13 lular component) and the admission in some proprietary interests in the technology it is countries (USA, Australia, Japan) of patents necessary to know in what jurisdictions—in on plant varieties. what countries—IPRs have been awarded, who owns the technology and the status of As noted above, the granting of PBRs does such ownership (for example, under assign- not limit the use of the protected material as ment or licence). Copies of licence agree- a source for further research and breeding, ments for the technology that was used in owing to the generally accepted “breeders’ the development of the material might be exemption”. In the area of patents, opinions needed. Sometimes, tracking down all of diverge on whether a patent would prevent the technology, the IPR associated with the a third party from commercially using a pro- technology and the owners of the IPR can be tected gene, in cases where its expression was very complex, will involve the cooperation not obtained through biotechnological means of many owners, and may require the use but as a result of conventional plant breeding of legal assistance, as in the case of “Golden methods.10 This too can differ in different Rice”®.14 Unless this information is known legal jusridictions. and assessed, the acquired germplasm cannot be distributed without the risk of breaking Traditional knowledge the law. If there are limitations on the ac- The need to develop some form of protec- cess and distribution of the germplasm that tion for communities’ knowledge has gained are at odds with institutional IP policy, this growing recognition since the 1990s. The can be made clear. Remember that IPRs are adoption of Article 8(j) of the Convention territorially limited: there is not an interna- on Biological Diversity gave impetus to this tional patent, for example. This means that idea (see Chapter 5 of this manual). Many if a technology used in the development of a approaches have been proposed to deal with new germplasm has been protected only by communities’ knowledge, ranging from the a patent issued by the United States, then this creation of new sui generis forms of IPRs to the germplasm is protected only in the USA. In simple option of legally excluding all forms other words, the germplasm cannot be used, of appropriation over such knowledge, be sold, exported out of, imported into, or made
SUSAN BRAGDON (EDITOR) 76 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
in the USA without proper authority (a licence distribution of genetic resources in genebanks. or licences from the IPR owner/owners.) However, thus far this has not been a problem. However, this material could be used, made And of course, the conclusion of the IT also or sold in other countries. Nevertheless, it is has IP implications for the CGIAR, some of important to remember that there may also which will be resolved as the treaty moves be agreements, such as an MTA or other con- forward (see Chapter 4). tracts, that may have been signed in order to The underlying philosophy for the CG acquire the material. The terms of the MTA Guiding Principles is that the management or other contract may specify the terms under of intellectual property by centres must be which the material may be used, sold, made, guided by the CGIAR mission to contribute etc., regardless of conditions that apply due to food security and poverty eradication in to formal IPR associated with the material. developing countries through research, part- These terms may preclude the distribution nerships, capacity-building and policy sup- of such germplasm in a manner consistent a port. Any engagement with intellectual genebank’s IP policy. property directly or indirectly would need to be done as the best means of pursuing the Lessons from the CGIAR CGIAR’s mission. The Guiding Principles Background also refl ect the CGIAR’s view that the protec- Perhaps some of the most dramatic develop- tion of intellectual property should not serve ments in legal and policy issues affecting the as a mechanism for securing recurring fi nan- CGIAR’s work have taken place in the fi eld cial returns upon which it may depend. To of intellectual property rights. This is par- the extent that such returns are generated, ticularly true with regard to the application they are to be used in support of specifi c tasks of intellectual property rights to biological and projects fully compatible with the CGIAR materials and processes. It is in this context mission and objectives. that the CGIAR has endorsed Guiding Prin- ciples on Intellectual Property Rights and Specifi c examples of issues of general Genetic Resources recognizing that they may relevance need to evolve in response to changing law 1. IP embedded in the genetic resource: Use and technology (Table 10.1). of IP that is a part of a genetic resource (often Developments affecting the conservation, referred to as IP “embedded” in the genetic exchange and use of genetic resources include, resource) can present situations that require for example, the use of intellectual property a careful understanding of the specifi cs of rights, most notably patenting, to protect plant the particular situation. For example, if a varieties and their components. These devel- particular type of breeding scheme, which is opments have expanded dramatically, creating protected by patent IPR granted in the USA, an uncertain but arguably more restrictive has been used to develop a new variety of environment for the use and deployment of bean, this technology is a part of that par- genetic resources. Methods and technologies ticular bean germplasm. In other words, if a of critical importance to the research function person grows this variety (or any variety of of CGIAR centres are also increasingly pro- bean developed with the protected breeding tected by intellectual property rights, render- scheme) in the USA without a licence from the ing access and use more problematic. The rise owner, then this person will be committing an of broad, so-called “blocking” patents raises infringing act. He will be infringing the rights the possibility that intellectual property rights of the IPR owner and the owner of the IPR can might be employed in ways that can affect the bring a civil suit (e.g. can “sue”) against the development, improvement, access to and person who is growing the beans, and anyone
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Table 10.1. CGIAR Guiding principles on IPRs relating to designated germ plasm and centre research products
• The centres will not claim legal ownership nor apply intellectual property protection to the germplasm they hold in trust, and will require recipients of the germplasm to observe the same conditions, in accordance with the agreements signed with FAO. • Materials supplied by the centres, whether designated germplasm or the products of the centres’ breeding activities, may be used by recipients for breeding purposes without restriction. Recipients, including the private sector, may protect the products of such breeding through plant variety protection that is consistent with the provisions of UPOV or any other sui generis system, and that does not preclude others from using the original
• Based on the conviction that their research will continue to be supported by public funds, the centres shall regard the results of their work as international public goods. Hence, full disclosure of research results and products in the public domain is the preferred strategy for preventing misappropriation by others. Consequently, the centres will not assert intellectual property control over derivatives except in those rare cases when this is needed to facilitate technology transfer or otherwise protect the interests of developing nations. In all such cases, the centres will disclose the reasons for seeking protection.
• The centres do not see the protection of intellectual property as a mechanism for secur- ing fi nancial returns for their germplasm research activities, and will not view potential returns as a source of operating funds. In the event that a centre secures fi nancial returns as a result of the commercialization by others of its protected property, appropriate means will be used to ensure that such funds are used for furthering the mandate of the centre and the objectives of the CGIAR.
• Any intellectual property protection of centres’ output will be done on behalf of the centres and not individual scientists. All staff in the centres will be required to disclose innovations and assign all rights on these to the centres. • Cells, organelles, genes or molecular constructs isolated from materials distributed by centres may be protected by recipients only with the agreement of the supplying centre. Centres will only give such approval after consultation with the country, or countries, of origin of the germplasm where this is known or can be readily identifi ed. This consultation would include consideration of an appropriate sharing of any benefi ts, whether bilateral or multilateral, fl owing from subsequent commercial development of the protected material,17 and would require that the original material remains available for the public good.
• To promote the availability to developing nations of germplasm and scientifi c innova- tions that have been protected by others, the centres may enter into agreements with the holders of such rights. Acceptance of any limitations on the distribution and use of derived and associated materials would have to be consistent with the goals and objec- tives of the CGIAR, and the benefi ts of such agreements should outweigh the potential disadvantages.
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in the USA who buys, sells or uses the beans used outside of the original laboratory where grown by the non-licensed person!15 It is easy the research was performed, for fear of an to see how the use of needed technology infringement lawsuit. could—directly or inadvertently—infringe the rights of an IPR owner. Genetic resource 3. Defensive protection: Another issue that managers need to know about any technol- may affect GR managers is IPR that is sought ogy, especially involving embedded IP, asso- and obtained in order to obtain “defensive” ciated with germplasm in their genebank. protection.16 In this type of situation, a de- veloper may have applied for statutory 2. Freedom to operate: In the dissemination protection only to prevent others from ob- or transfer of technology, reference may be taining patent or PVP for a new invention made to the “freedom to operate” (FTO) that or variety. In this way the developer can be is associated with a particular seed or other assured that no one will be able to prevent genetic resource. While not a legally defi ned him from practising his invention or using term, FTO usually means that a legal profes- his newly developed variety. No country al- sional has looked at the terms of IPR and lows statutory protection for an invention contracts associated with a technology or a or product that is not new.18 Therefore an product, in order to render an opinion as to invention cannot be patented twice and a whether infringement will occur if the tech- defensive patent ensures that an inventor nology or product is used, made or sold in a will be able to use, sell, make, etc. his pat- specifi c situation. This assessment includes ented technology without fear of infringing terms and provisions—of formal IPR, of non- someone else’s IPR. An additional reason statutory IPR, of contracts, agreements and that inventors (or their home institutions) licences—associated with the IP involved will seek defensive protection is to increase in the development of the germplasm in the leverage they have, to obtain other tech- question. The rendering of an FTO involves nologies from other IPR owners. Defensive an understanding of what technology has protection may be associated with genetic been used in the development of the germ- resources and, as the manager, you need to plasm, a search of IP (e.g. patent) databases know. Often the owners of this type of IPR to determine the status of statutory IPR, an are very willing to give out licences that are investigation of all contracts and agree- royalty-free to anyone that asks. ments associated with the germplasm, and an understanding of the commercial situa- 4. Participatory plant breeding: Partici- tion regarding the technology used and the patory plant breeding—the collaboration germplasm involved. However, sometimes between “formal” and “informal” breed- an FTO may be just a quick verbal opinion, ers—efforts have been growing over the rendered by an IP attorney, based on their last 10 years. Nevertheless, a range of defi - experience in a particular technology area. nitions of what exactly it entails still exists Regardless, an FTO is just an opinion and and, perhaps more signifi cantly, key aspects does not determine the infringement status, of legal and ethical issues are only now being but only the risk of possible infringement, if explored. A CGIAR–IDRC project on Partici- the germplasm is grown, distributed, sold, patory Plant Breeding and Property Rights is etc. in a particular sovereign state. Nowadays, examining these issues with the goal of estab- many institutions are requiring scientists to lishing “Best Practices” or a code of conduct obtain an FTO opinion before research com- to guide genetic resource professionals in mences in order to prevent a situation where their collaborative efforts with farmers and a research product cannot be distributed or farming communities.
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Intellectual Property Rights audits This may include a comprehensive strategy Often an institution will carry out an IP audit for dealing with IP issues or may just take the to determine the status of IP being used and form of a limited number of recommenda- generated by their staff. tions that can be phased in, by management, Such an audit includes assembling or to try to meet more limited expectations. making an inventory of relevant documents Again, the terms of reference in the contract such as collaborative agreements and em- established with the auditors will determine ployment contracts. (A relevant document the extent to which the recommendations are would be one that contains any language or strategic and comprehensive. provisions having to do with intellectual IP audits can strengthen an institution’s property ownership, assignment or any ability to make sure that it is using “due other dispensation; also any intellectual prop- diligence” in its use of other’s IP, in protecting erty such as data entered into log books or its own IP in compliance with its IP policies, laboratory notebooks, invention disclosures, and in collaborating with other institutions. patents, patent applications, third party prop- The terms of reference (TOR) for an IP erty, and the like.) audit of an institution that has a genetic re- Then the auditors will go over each of source should include such items as: these documents to assess the terms and (a) An inventory of all agreements such as conditions of each, how these terms and MTAs that cover individual accessions. conditions might affect the ability of the (b) An inventory of IP that is being used and institute to use and distribute (both their own generated by the staff of the institution. and another’s IP) and to (try to) establish (c) An evaluation of all procedures used by ownership of each piece of IP. (This might the genebank for the acquisition and dis- include looking at so-called FTO issues, but semination of materials. likely will not include an FTO opinion, only (d) An assessment of employment agree- the identifi cation of a need for an FTO opin- ments, including those for temporary ion to be performed.) The auditors will de- visitors, consultants, visiting scientists termine the institution’s vulnerability to and scientists that have been seconded challenges associated with IP, ranging from from other institutions, especially those infringement to duplication of other’s work, persons that are involved with genebank to the need for defensive protection. operations. The auditors will create an inventory or (e) A determination as to the status of a database of IP. Such a database, created in embedded technology associated with any conjunction with an IP audit, will often, but accessions, and whether such status sug- not exclusively, concentrate on self-gener- gests that a separate investigation (to deter- ated IP, usually in the form of an inven- mine the risk of exposure for infringement) tions—or invention-disclosure entries. This should be carried out. (Such an investiga- will depend upon the terms of reference tion may take the form of an FTO.) determined by the institution. It is important (f) An assessment of licences, including to remember that this inventory will include licences accompanying the procurement all forms of IP—patents and patent applica- and use of laboratory reagents and equip- tions, PVP certificates and applications, ment, to determine whether any IP pro- trademarks, copyright, databases, trade se- visions would affect the acquisition and crets, traditional knowledge, geographical dissemination of genetic resources. indications, etc. (g) Recommendations regarding the man- Another product of an IP audit will be agement of IP (both the institution’s and recommendations regarding IP Management. other, third-party IP).
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(h) Recommendations regarding legal 2 See Chapter 7 on the UPOV Convention. actions, such as the fi ling of reexamina- 3 See Article 8(j) of the CBD. See also the draft text tions or other types of challenge to IPR of of a “Draft Declaration on the Rights of Indig- enous Peoples” which states that “Indigenous others that might affect the institution’s peoples have the right to special measures for ability to distribute genetic resources. protection, as intellectual property, of their tradi- (i) Evaluation of compliance with national tional cultural manifestations, such as literature, and international agreements and regula- designs, visual and performing art, seeds, genetic tions covering genetic resources and IP. resources, medicines and knowledge of the use- In order for IP auditors to have access to ful properties of fauna and fl ora” (U.N.Doc.E/ CN.4/Sub.2/192/33, Annex 1, para. 19). all of the materials and information that they 4 As the Genetic Resources Manager, you may need to carry out a good IP audit, it will usu- or may not have the ability to sign an MTA for ally be necessary for them to obtain access to your institution. Often, only the Director General information that the institution considers to or head of an institution will have “authorized be confi dential. This might be information signatory power” for an institution. However, sometimes such authorization can be formally that the institution has marked as confi den- held by other staff, such as the genetic resource tial, to protect its IPR or its ability to apply manager, for specifi c situations, as in the acquisi- for formal protection. Or, confi dentiality may tion and distribution of genetic resources. be stipulated by a third party as part of an 5 The patenting of this kind of material has been agreement or contract. In either case, the IP facilitated in the United States by a “grace auditors and the institution will need to enter period” that offers extended protection for the novelty requirement. In addition, according into a confi dentiality or non-disclosure agree- to the US Patent Law a disclosure outside the ment to protect the rights of the institution United States of an information in a non-written and other third parties. This confi dentiality form (e.g. by use) does not destroy novelty and, agreement should follow conventional “best- therefore, a patent can be granted if the other practices” and include such items as: an ap- patentability requirements are met. 6 pendix of material that has been disclosed to See an analysis of the submissions by develop- ing countries to the Council of TRIPS on this the auditors, a statement regarding how the issue, in GRAIN. 1999. TRIPS 27.3(b). An update confi dential material will be used, a statement on where developing countries stand with regarding ownership of information and re- the push to patent life at WTO. March 2000. ports that result from the audit, the time www.grain.org/publications/tripsfeb00-en.cfm. 7 limitations associated with the access to con- For instance, the Costa Rica Biodiversity Law recognizes “the existence and validity of forms of fi dential documents, a statement of whether knowledge and innovation and the necessity to the documents will be destroyed or returned, protect them by means of the use of legal mecha- a statement regarding the settlement of dis- nisms appropriate for each specifi c case”, but putes, an effective date, a termination date, excludes from any kind of intellectual property etc. Such an agreement should be written protection (including community intellectual with the help of a qualifi ed attorney or law- rights) the following: • Sequences of deoxyribonucleic acid per se. yer. The confi dentiality agreement will need • Plants and animals. to be signed by an authorized person and • Non-genetically modifi ed microorganisms. should be put into place before an audit is • Essential biological processes for the produc- initiated. tion of plants and animals. • Natural processes or cycles as such. Endnotes • Inventions essentially derived from knowledge 1 Intellectual property can be protected by a plant which is associated with traditional or cultural variety protection certifi cate, a patent, a trade- biological practices in the public domain. mark/ trade dress, copyright, database right, a • Inventions which, to be commercially exploited geographical indication, and as a trade secret, for through a monopoly, can affect farming or fi sh- example. ing processes or products which are considered
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basic for the food and health of the inhabitants 84). The Costa Rican Biodiversity Law estab- of the country (Article 78). lished a legal concept of community intellectual 8 For instance, Decision 391 of the Andean Group rights, and provided for a voluntary registration stipulates that Member countries shall not rec- system. Under this law any pre-existing com- ognize intellectual property rights over genetic munity rights shall absolutely prevent any grant resources, or their derivatives or associated of PBR or patents on the same subject matter. In intangible components, when access took place Brazil, Provisional Measure 2.052-6 (21.12.2000) in contravention to the access rules provided for provides that the State recognizes the indigenous by such Decision. The affected Member country and local communities’ rights to decide on the use can request the cancellation of granted titles. In of traditional knowledge associated with genetic addition, national offi ces competent in the area resources. Said knowledge is protected against of intellectual property rights shall require proof “illicit exploitation” and other unauthorized of the approval and registration of an access uses [Article 8(1) and (2)]. The Organization of contract, if they have reasons to believe that the African States (OAU) developed an African Model products or processes for which protection is Legislation for the Protection of the Rights of Lo- sought have been obtained or developed on the cal Communities, Farmers and Breeders, and for basis of genetic resources under the jurisdiction the Regulation of Access to Biological Resources. of Member States. The Costa Rica Biodiversity The Model law proposes an explicit recognition Law provides for a mandatory consultation to of communities’ intellectual rights, through a spe- the Offi ces in charge of granting patents and cifi c registration system, as well as the right not PBRs in relation to inventions that “involve bio- to allow access to the resources and knowledge diversity elements” and requires the proof–based under their control when access may threaten the on a “Certifi cate of Origin”—that prior informed integrity of their natural or cultural heritage. consent has been obtained (Article 80). 12 This discussion does not apply to so-called 9 In the Philippines, in the case of endemic species, “black-box” storage. Research Contracts must state that the technol- 13 “Proprietary interests” means that the owner of ogy should be made available to a designated the property has rights (IPR) that can be exer- Philippine institution and can be used commer- cised in this situation. cially and locally without paying royalty (Section 14 The IPR issues associated with the technology 5.l of the Executive Order No. 247). In Costa used in the development of “Golden Rice” have Rica IPRs granted on subject matter involving only recently been sorted out by the owners, biodiversity shall be subject to a compulsory after several years of analysis and compromise. licence for the benefi t of the State in the case of a 15 A court of law (a judge or jury) will decide declared national emergency, without payment whether any of these parties (the grower, the to the title-holder (Article 81, Biodiversity Law). buyer, the user) are guilty of infringement. A 10 For some experts, patents on genes only protect party that is an infringer will have to pay a fi ne the patent holder “against use of the gene by to compensate the IPR owner for revenue lost, another biotechnologist, but leave anyone free due to the infringing act. If trade secrets are to use and breed with organisms containing the involved, then criminal charges will also often be gene naturally” (Barton, J. 1998. Economics of brought against the defendant. patent enforcement. Patents, Copyrights, Trade- 16 Some would argue that statutory IP protection marks and Literary Property Course Handbook such as PVP and patents is always, strictly speak- Series. PLI’s Fourth Annual Institute for Intel- ing, of a defensive nature, in that obtaining such lectual Property Law. Practicising Law Institute, rights must be enforced by the owner. An IPR 532 PLI/PAT 343). Others, however, fear that owner must bring a lawsuit against someone that neither genes nor plant varieties will be available the owner thinks is an infringer. The government for further development without the previous of a sovereign state will not bring suit against a consent from the holders of intellectual property potential infringer of a patent or of PBR. rights (Lewontin, R.C. and Santos, M.M. 1997. 17 It is recognized that this requirement for the Current trends in intellectual property rights pro- granting of permission by a centre before a tection pose serious threats to future innovations recipient can take out patent protection repre- in agricultural sector. Diversity 13 (2&3):25-27. sents a signifi cant departure from the current 11 For instance, the Constitution of Ecuador (1998) position in which the centres do not require any recognizes “collective intellectual property rights” such permission. While this is not specifi cally on communities’ ancestral knowledge (Article required under the terms of the agreements
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signed with FAO, nevertheless the CGIAR feels that such a requirement is needed both to protect the interests of countries of origin and to bring CGIAR policy in line with the spirit of the Convention on Biological Diversity (CBD). While the CGIAR centres can not themselves be party to the Convention, it is nevertheless recognized that the majority of CGIAR members and partner countries have signed and ratifi ed the CBD. 18 There are some types of statutory protection that may not include a search of prior art, before protection is awarded. For example, the award- ing of some types of short-term patents in certain countries (so-called “innovation” or “petty” patents) may not require a search of the literature to determine if the invention is new. There are rare circumstances where legislation may include provisions that are unclear as to the new or novelty requirement, such as the newly enacted Indian PVP and Farmers’ Rights Protection law.
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XI. Cross-cutting issues
Interrelationships policies are explicitly linked in national law, In addition to needing familiarity with the GR professionals must therefore be sensitive provisions of the international obligations to the relationship between, inter alia: and any corresponding national implement- • intellectual property rights and ABS ing legislation, GR professionals also need to mechanisms be familiar with the key issues arising from • intellectual property rights and indig- these instruments in general and how they enous and local communities link or potentially may link across instru- • ABS mechanisms and indigenous and ments and institutions. The complex inter- local communities relationship among issues such as Farmers’ • the MLS and Farmers’ Rights Rights, the rights of indigenous and local • patents and plant variety protection (both communities, intellectual property rights, in terms of national laws implementing conservation of genetic resources, access to the TRIPS Agreement and in terms of genetic resources and benefi t-sharing from managing intellectual property rights in the use of genetic resources challenges the their work). kind of neat presentation and analysis that would be useful to decision-makers. For International policy and law example, while the access provisions of Furthermore, the GR professional must be the CBD do not mention intellectual prop- aware of the evolution of the international erty rights, in practice there is a clear and “regime”and their relationship to one an- very strong link. In fact, as the session on other. Treaties can have different but related the history and origins of law in this area subject matter. The CBD, for example, cov- discussed, a catalyst to the development of ers all biological diversity while the IT is benefi t-sharing schemes and the mechanism only concerned with PGRFA. Treaties can of access regulation generally had to do with also belong to different areas of interna- an imbalance between actors that benefi ted tional law, such as environmental law and from intellectual property rights and those trade law. While there is no legal hierarchy that did not benefi t from property rights between fi elds of international law, in prac- regimes. tice the WTO trade-related instruments are stronger because they contain the threat of National policy and law sanctions. This threat does not exist in the Genetic resources professionals fi rst need CBD or the IT. to be aware of their national policies and Generally, access to biological material is laws. National systems (both in response to addressed by instruments such as the CBD and because of their effect on international and the IT and access to breeding results and debates) are growing more formal and com- genetic innovations are usually regulated by plex with respect to the ownership of and IP instruments such as the national regimes access to genetic resources. In developed established pursuant to the TRIPS Agree- countries—largely as a result of private sec- ment or UPOV. When dealing with access, tor pressure—both the scope of what can be GR professionals need to know which instru- protected and the strength of the protection ment governs. The IT governs all PGRFA,1 are expanding. IPR protection is expand- the MLS only a subset established by Annex ing in the more industrialized developing 1. At the same time, the Annex can be countries as well. In developing countries, amended by the Parties. For PGRFA not laws are emerging governing ownership, subject to the MLS and accessed after the access and benefi t-sharing. All these things entry into force of the CBD, the CBD provi- are interrelated. Whether or not these sions apply. Another issue that may arise is
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the relationship of the IT to any networks to IT: The Multilateral System which country or institution may belong and Benefi t-sharing was also a major topic of whether these agreements are consistent debate in the context of the IT. The MLS with the IT. established by the rules for access and ben- When dealing with intellectual property efi t-sharing for genetic resources of a list of rights and the minimum standards set by crops contained in an annexe to the treaty international law, the relationship between and associated information. Intellectual instruments has been a matter of debate. property rights are respected. IPRs may Debate has gone on for years about the not be claimed, however, on material “in relationship between the CBD and the the form received” from the system. The TRIPS Agreement with the Doha Ministe- precise meaning of this phrase may need rial Declaration asking for further examina- to be clarifi ed by the Interim Committee tion of the relationship between the CBD, and ultimately the Governing Body to the TRIPS and traditional knowledge. The CBD IT. The Treaty’s article on benefi t-sharing is ambiguous on its relationship to IPRs recognizes that access itself is a major ben- except that it is clear that they should be efi t of the Multilateral System, and states supportive of and not run counter to the that benefi ts arising from the use of PGRFA Convention’s objectives. GR professionals under the Multilateral System should be should therefore aim to manage intellectual shared fairly and equitably through a property in a manner that is in line with number of mechanisms, both voluntary national objectives and supportive of the and mandatory in nature. Contracting Par- CBD while observing the minimum stan- ties agree, for example, to “provide and/ dards set by TRIPS. Another area where or facilitate access to technologies for the property rights arise is with participatory conservation, characterization, evaluation plant breeding. When formal, institutional, and use of plant genetic resources…” This breeders collaborate with farmer-breeders particular paragraph [13.2.(b)(i)] encour- a whole host of ownership issues arise to ages the transfer of technologies including which a GR professional must be sensitive those that are essentially “embedded” in (see Chapter 2). genetic materials. But, the transfer is not mandatory, and respect for property rights Benefi t-sharing is specifi cally accommodated. Benefi t-shar- CBD ing in the form of a payment into an inter- Issues of equity and benefi t-sharing are the national fund at FAO is mandatory when common threads underlying most of the genetic material from the system is used cross-cutting issues. Benefi t-sharing is one to produce a “product that is a PGRFA” of the CBD’s three objectives and is explic- (e.g. a line or cultivar) that is commercial- itly and implicitly reinforced throughout the ized, unless this product is made available treaty’s provisions. Nevertheless, the term is without restriction for further research and never defi ned or given concrete operational development. In effect, patenting will trig- content. In the context of access, intellectual ger the benefi t-sharing mechanism; plant property rights, traditional knowledge, the breeders’ rights will not. A genebank issue of how benefits will be generated, manager accessing or receiving non-MLS to whom the benefi ts will fl ow and what material may wish to consider the value of constitutes benefi ts continue to be subject to encouraging the receipt of the material on considerable debate. These issues are also at the condition that it be treated in the same the heart of the debate on the relationship way as MLS material. In addition to simpli- between the CBD and TRIPS. fying and reducing administrative costs it
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would assure that access and benefi t-shar- Endnotes ing arrangements were consistent with the 1 The IT does not, however, cover access for pur- norms established by the IT. poses that are not related to food and agriculture.
IT: Farmers’ Rights Issues of equity and benefi t-sharing were also a catalyst to the evolution of Farmers’ Rights under the IT. In the original IU debates there were those who used the term “Farm- ers’ Rights” as a general political concept and those who interpreted it as a legal con- cept. Those viewing it as a legal term make proposals such as defi ning the rights as an alternative form of IPR covering, for example, the products of farmer selection and breed- ing. Those viewing it as a political concept make proposals to establish a fund to fi nance PGRFA conservation and development work. The IT clarifi es the international implications of the term. In Article 9, Contracting Parties recognize the contribution of farmers, but state that the responsibility for the realiza- tion of Farmers’ Rights rests with national governments. Each Contracting Party “in accordance with their needs and priori- ties…as appropriate, and subject to national legislation” agrees to take measure to protect and promote Farmers’ Rights, including the protection of traditional knowledge, the right to participate in benefi t-sharing, and the right to participate in making decisions at the na- tional level regarding PGRFA. The obligations are vague and, as with the CBD, conditioned by phrases such as “as appropriate”; hence there is no commitment to do anything spe- cifi c. Article 9.3 notes that “Nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate.” If the farmers have these particular rights in a national jurisdiction then there is nothing in the treaty that takes these away. On the other hand, there is nothing in the treaty that estab- lishes these rights either. The GR professional must therefore be aware of how the issue is handled nationally.
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Annexes Economic issues
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Annex 1: Economic concepts for on-farm and ex situ conservation of crop genetic resources
Relevance to genetic resource resources is presented, and some key back- managers ground references are provided for those Genetic resource professionals are frequently seeking detailed examples of related asked about the value of crop genetic resources. research. They need to be aware that there are multiple types of economic value associated with these A taxonomy of economic values resources and that it is often diffi cult to estimate Overviews and surveys discussing the sourc- them reliably in monetary terms. This chapter es of economic value in crop genetic resources summarizes in descriptive terms the economic are numerous.1 The economic value of gene concepts that are important for practitioners and species interactions with ecosystems to understand as they consider strategies for and other biological functions has also been conserving crop genetic resources in genebanks reviewed, and a recent example is found in and in situ, in the fi elds of farmers. Selected Nunes and van den Bergh.2 Alongside con- literature in this fi eld is also cited, though ceptual overviews of the sources of value, studies with empirical bases that have prac- several theoretical economic models have tical implications are only now beginning to analyzed the value of genetic resources.3 accumulate. Section I reviews general concepts The value derived from crop genetic of value as applied to crop genetic resources. resources is broadly categorized as use value Sections II and III address on-farm and ex situ and non-use value. Sometimes referred to as conservation, respectively. existence values, non-use values refl ect the satisfaction individuals or societies may de- Economic value of crop genetic rive simply from knowing that something resources exists, independently of whether it is used.4 There is growing recognition of the impor- It is diffi cult to imagine, however, that many tance to global society of conserving crop people (other than a few specialists) derive genetic resources for the benefi t of current pleasure only from being assured that crop and future generations. Yet relatively little genetic resources are housed somewhere in information has been compiled that demon- a genebank or grown in the fi elds of distant strates (in quantitative terms) the benefi ts farmers. Instead, crop species are conserved from or the costs of conserving crop genetic precisely because they are thought to embody resources by either ex situ or in situ means. alleles of potential use to human society. Most What explains this defi ciency? First, the top- value associated with the accessions in a ic area requires specialized, interdisciplin- genebank collection or crop varieties grown ary expertise that is not provided in typical by farmers is derived from their use rather graduate curricula. Second, conceptual ad- than their mere existence. Whether or not vances in estimating benefi ts have been hin- such resources have non-use value can be dered by the fact that crop genetic resources tested, however, with applied methods such generate values with multiple dimensions. as “contingent valuation”.5 In turn, progress in empirical analysis has Use value includes current use value and been hampered by measurement diffi culties expected future use value, as well as the because only some of these dimensions are value of retaining the fl exibility to respond revealed in market prices. to some unknown, future event—called op- The concepts that economists use to un- tion value. Both current and future use derstand the multiple dimensions of value values can be estimated through market associated with crop genetic resources are prices when a product or good, such as grain described next. An economist’s “taxonomy” or seed, is traded. We can use forms of “he- of the values associated with crop genetic donic analysis” to ascertain the current
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value for productivity enhancement of crop crop varieties, such as their contribution to the genetic resources embodied in crop variet- generation of scientifi c knowledge. Findings ies.6 A genebank collection, in contrast to a from a recent survey of international users of breeder’s working collection, exists to a large the US National Plant Germplasm System extent in order to respond to future, unfore- illustrate this point.10 seen challenges, and therefore the expected Option value is similar to expected future future use value of a genebank collection is use value conceptually, but distinct from it in an important component of its total value. practice. For example, we might use the past We can, with some methodological diffi - incidence of changes in rust disease patho- culty and a number of caveats, calculate a gens or other major pest outbreaks to predict present value of expected future benefi ts the expected future value of certain types of from direct use of germplasm in crop im- accessions as sources for new sources of re- provement. We do so by combining the sistance for a known pest. However, there are probability of fi nding useful material with some pests and other environmental events its predicted productivity benefi t once it is for which we have no prior knowledge at all. found and incorporated into new varieties. Accessions, and collections of accessions, can The time required to search for and incorpo- have option value related to this uncertain- rate useful genes into well-adapted germ- ty—but determining its magnitude in quan- plasm affects the magnitude of expected titative terms is diffi cult. benefi ts in a major way because of the time value of money. The impure public good problem In contrast to numerous conceptual over- The basic economic problem for either ex situ views or theoretical treatments of the topic, or in situ conservation is that crop genetic there are few published examples that use resources are “impure public goods”. An empirical data to estimate the expected value impure public good has both private and of genebank collections in crop improvement. public economic attributes. The market Evenson and Gollin7 traced the fl ow of rice prices that are typically used to value prod- germplasm from the International Rice Re- ucts in cost-benefi t analysis generally fail to search Institute into improved varieties grown capture the full value of public goods or the in the developing world, and estimated that public attributes of goods. adding 1000 accessions to the collection was From an economics perspective all goods associated with annual income of $325 million can be situated somewhere on two axes defi ned in present value terms. Gollin et al.8 studied by the extent of rivalry in use and the ease or several cases of the search for resistance among cost of excluding users. Pure private goods, germplasm stored in a wheat collection at the such as an ice cream cone or a bag of grain, are CIMMYT genebank, drawing inferences about highly rival and excludable. A bag of seed or the optimal size of collections and the condi- grain is an example of a pure private good. Two tions under which marginal accessions may people cannot use the same unit of a private or may not have high value. Zohrabian9 esti- good simultaneously and it is easy for one mated the lower-bound value of an addi- person to exclude another. Many people can tional accession in the US soybean collection use pure public goods simultaneously and in crop improvement, concluding that while excluding others is costly (Fig. A1.1a). Exam- the benefi ts may not be great in absolute terms, ples of pure public goods are the air we breathe they more than justify the costs. Moreover, it or the genetic content of windborne maize is important to remember that there are many pollen in open fi elds. current and future uses of genebank accessions Note that the same seed which is private other than their direct use in breeding new as a farm input or output is also public in terms
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Fig. A1.1. Economic attributes of goods. Adapted from (a) Romer 1993* and (b) Sandler 1999.†
Rivalry over use Characteristics of impure public goods that affect the form of institutional intervention pure impure public public Characteristic Examples good good Intragenerational Regional Waterways Global Satellite impure pure transmissions public private Intergenerational Regional Regional fisheries good good Global Ocean fisheries Degree of control or excludability
(b) (a)
* Romer, P.M. 1993. Two Strategies for Economic Development: Using Ideas and Producing Ideas, p. 72. Proceedings of the 1992 World Bank Annual Conference on Development Economics, The World Bank, Washington, DC. † Sandler, T. 1999. Intergenerational Public Goods: Strategies, Effi ciency and Institutions. P. 24 in I. Kaul, I. Grunberg and M.A. Stein (eds.), Global Public Goods. United Nations Development Programme and Oxford University Press, Oxford. of its genetic content. Two farmers cannot result in smaller plant populations and the loss benefi t from the same handful of grain simul- of potentially valuable alleles, their choices taneously, so they are rivals for its use. Yet have intergenerational and interregional con- many of both today’s and tomorrow’s farmers sequences (Fig. A1.1b). can enjoy simultaneously the benefi ts of the Since genetic resources are never fully genetic codes embodied in the same seed types transparent to the farmers who provide and or varieties. As a practical matter, it is diffi cult use them and are undervalued in markets, for one farmer to exclude another’s use of the farmers are unable to consider the contribu- same germplasm, particularly because the tions of all other farmers to the genetic pool genetic content of a handful of seed or grain in their community or elsewhere when they is to a large extent unobservable without the make their decisions. Economic theory pre- assistance of a laboratory and microscope. dicts that as long as a public good is a “good” Unlike a polluted stream or a wilderness area, (a desirable public good) as compared to a farmers cannot see the genetic codes in the “bad” (an undesirable public good), private crops they grow. Crop genetic resources, like producers will generate less of it as a group a wilderness area and unlike pollution, are than would be socially optimal.11 Heisey et more likely to generate a desirable public good al. have illustrated this point for the case of or “positive externality” rather than an unde- diversity in crop genetic resistance to leaf rust sirable, or “negative externality”. Furthermore, in the Punjab of Pakistan.12 since farmers’ decisions on the use and man- Economists generally argue that institu- agement of crop varieties in their fi elds can tional structures are needed to compensate for
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the inability of markets to provide suffi cient in situ refers to the continued cultivation and incentives for farmers to allocate their re- management by farmers of crop populations sources in ways that are consistent with the in the agroecosystems where the crop has needs of society. These structures will differ evolved.15 Storing genetic resources in collec- according to culture, as well as the temporal tions as back-up seed stocks in ex situ collec- and spatial dimensions of the impure public tions does not substitute for the evolution of good13 (Fig. A1.1b). Some societies have much crop plants in the fi elds of farmers. Crop plants stronger collective behaviour than others. At grown in farmers’ fi elds are highly vulnerable the community level, depending on the social to natural and man-made disasters, compared and economic conditions farmers face, com- with those conserved in genebanks. On the munity awareness campaigns may be suffi - other hand, plant populations on farms have cient to ensure that certain materials of the capacity to support a greater number of genetic importance to them and to others rare alleles and different genotypes than acces- continue to be grown. By contrast, complex sions in genebanks.16 On-farm conservation is structures are likely to be necessary to mediate increasingly viewed as a complement to, rather conservation interests at the global level be- than a substitute for, ex situ conservation.17 In cause actors may not perceive that they share economic terms, complementarity implies that common interests. The International Under- when the genetic resources are conserved by a taking and the Convention on Biological Di- combination of both strategies, their expected versity are elements of such structures. marginal value is greater than when they are Therefore, the extent of public investment and conserved by either strategy alone. the policy mechanism needed to narrow the The difference in conservation goals im- divergence between what individuals and plies that the genetic resources themselves societies perceive as optimal clearly depends are not directly comparable between strate- on many factors. gies, while the distributions of their eco- nomic benefits and costs also differ in Differences in costs of and benefi ts from ex fundamental ways (Fig. A1.2). The costs of situ and on-farm conservation genetic resource conservation in genebanks Since the 1970s, large numbers of landraces are now borne largely by public investments, and wild relatives of cultivated crops have and consumers (as well as farmers who are been sampled and stored in ex situ genebanks. consumers) benefi t indirectly from the ge- Another form of conservation in situ has also netic resources incorporated into improved received some scientifi c attention.14 For culti- crop varieties because when technological vated crops, conservation of genetic resources change occurs, output expands and prices
Fig. A1.2. Generalized distribution of economic costs and use value from in situ and ex situ conservation. Conservation Greatest share of: Strategy costs borne by use value earned in use value earned by In situ Local farmers Current period Local farmers and consumers conservation Ex situ Taxpayers and Future period Public, in the form of conservation general public knowledge Consumers, as a result of technical change
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decline. Genebanks also provide other ben- objectives the farmer pursues for his or her efi ts to society when they serve the advance- own personal benefi t, and is not limited to ment of science through generating profi tability. The public value of crop genetic information about genetic resources. Charac- diversity refers to the welfare of society rather terization and evaluation information can than its individuals and includes (1) bequest shorten the time to incorporation of the re- value for future generations, (2) insurance source into a variety that is subsequently value for potential disasters, and (3) option released by a plant breeding programme or value for any unforeseen events, such as other discoveries. A large proportion of the changes in consumer tastes. total economic value associated with ex situ As long as farmers themselves fi nd it in collections is related to expected future ben- their own best interests to grow genetically efi ts as well as the ability to cope with as yet diverse crops, both farmers and society as a unknown, potentially disastrous, events. whole will benefi t at no extra cost to anyone. By contrast, both the costs and benefi ts of In geographical locations where genetic diver- conserving genetic resources in situ are felt sity is believed to be signifi cant but farmers directly (and in a very immediate sense) by are revealed to have few existing social, cul- the farmers who grow them. Consequently tural, or market-based economic incentives to this form of conservation poses social and maintain it, then public investments to support economic challenges. Certainly both in situ and conservation are necessary. Public funds are ex situ conservation can generate benefi ts at those generated by taxes or donations, trans- local, national and international levels, and it ferring income from one segment of the world is possible for genebanks to work directly with population to another. Economists generally small groups of farmers in order to address believe that these forms of interventions are their needs more directly. But this is more the more “costly” to society than market-based exception than the norm, perhaps because incentives, though the expense may be justi- there are many technological and institu- fi ed if the size of the benefi ts that accrue to tional impediments that make doing so costly. society outweighs the costs.18 Whether this is It is more frequently the case for in situ con- true or not depends on the society, and the servation to broaden the range of materials perceptions of social welfare held by those held in an ex situ collection, augmenting its responsible for such decisions—or how deci- expected future use value. Costs of on-farm sion-makers weigh various social goals. conservation involve the opportunity costs of Least-cost conservation of diverse crop farmers’ time and in some cases, foregone genetic resources on farms will occur in sites development opportunities. that are most highly ranked in terms of pub- The following two sections discuss in lic benefi ts and where, because the private more depth the economic aspects of conserva- benefi ts that farmers obtain from growing tion on farms and in genebanks. them is greatest, public interventions to en- courage them to do so will be least. There Economic options to support on-farm both the costs incurred to individuals and conservation of crop genetic resources those incurred by society in general will be As explained in Section I, each combination relatively low. of seed types and crop management prac- From an economics perspective, therefore, tices chosen by a farmer jointly produces (1) two essential steps should precede the design a crop output of food and feed with private of specifi c policy instruments to support on- value to the farmer, and (2) a contribution to farm conservation of crop plants in a particu- an evolving genetic resource base of public lar area. First, we must ascertain, with the value. Private value is measured in terms of assistance of genetic analyses and scientifi c
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information, in which locations crop varieties development of commercial markets. Human that are likely to constitute valuable resourc- population density, or the ratio of the supply es are grown. There may be differences of of labour to the supply of land, explains much opinion among breeders and conservationists about where the transition from low-yield, about which varieties are “important” for the land-extensive cultivation to land-intensive, future needs of society. For example, some double and triple crop systems has occurred.19 may emphasize rarity of alleles while others The genetic changes embodied in seed consti- focus on allelic diversity. Each criterion can tute one type of intensifi cation, which refers be measured by various techniques, includ- more broadly to the increase in output per ing molecular analyses and agromorpho- unit of land used in production (or yield). logical characterization. Historical diffusion patterns for modern Second, we must be able to predict the varieties of highly bred crops such as wheat, extent to which farmers in such locations rice and maize illustrate this point. Predict- have an interest in continuing to grow those ably, the adoption of modern rice varieties in varieties deemed “important”. Given suitable the developing world has been most complete data, micro-economic theory and applications in densely populated rice-producing areas can be used to relate explanatory factors to where traditional mechanisms for enhancing the likelihood that farmers will continue to yields have been exhausted.20 grow the varieties. The next section reviews Controlling for population density, the related empirical evidence, including some adoption of modern rice varieties is extensive key references. in more favourable irrigated areas and un- even in more environmentally stressful areas, Evidence about farmers’ incentives for which include some irrigated and many rain- on-farm conservation fed zones. Modern varieties are largely absent We can think of the likelihood that farmers in the most diffi cult growing environments, continue to grow landraces as the likelihood such as uplands and deepwater areas. Simi- that they will not replace them with modern larly, since the initial adoption and rapid varieties. The assumption has long been made diffusion of the fi rst semi-dwarf varieties of that modern varieties will inevitably replace wheat in the irrigated areas of the Asian sub- landraces because they represent categorically continent during the 1970s, more widely a better economic opportunity. Consequently, adapted descendants of these varieties spread growing landraces involves a cost in terms of gradually into environments less favoured foregone development opportunities. This for wheat production and rain-fed areas. assumption is built on some widely accepted Today, wheat landraces are cultivated exten- principles concerning the process of agricul- sively only in portions of the drier production tural development. zones of the West Asia–North Africa region and highlands of Ethiopia. Global or regional factors: From a global Among the three highly bred, major cere- perspective, several generic factors help us als, maize has the lowest proportion of area to begin excluding certain large geographical in the developing world planted to modern areas where the potential for cost-effective on- varieties. One explanation involves the rela- farm conservation is minimal. Broadly speak- tionship of germplasm to agroecology. For ing, theory predicts and empirical research many of the environments in which maize is has shown that three major factors determine grown, suitable improved materials have not the likelihood that modern varieties will be been developed by centralized breeding pro- more attractive to farmers than landraces: grammes.21 The maize germplasm that per- human population density, agroecology, and forms well in temperate climates of
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industrialized countries cannot be introduced occupy other economic roles in developing directly into the non-temperate regions of countries, such as either home-grown species developing countries without considerable that fulfi l specifi c dietary needs (famine crops additional breeding for adaptation.22 A sec- in Africa) or highly valuable commercial crops ond explanation involves the relationship of produced for specifi c market niches, such as the crop reproduction system to the com- ornamental fl owers. mercial seed industry. Since maize is a pre- dominantly open-pollinating crop, farmers Local and community factors: Regional fac- who seek to maintain the yield advantages tors such as the agroecology of a crop produc- associated with modern varieties of maize are tion zone or the development of commercial reliant on commercial seed in a way that rice infrastructure affect the range of choices and wheat growers are not—since they must made by each of the farmers who reside in a frequently replace the seed.23 Most modern region, though these factors are not affected in varieties of maize are hybrids. Even if adap- a signifi cant way by the specifi c conditions of tation problems could be overcome through any one farm or the deliberate actions of any breeding, farmer demand for costly hybrid one farmer. Within regions that contain sev- seed in developing countries remains limited eral candidate sites, such as a region within a because many remain subsistence-oriented country or an upland area that spans national and have cash-fl ow problems. boundaries, detailed empirical work is neces- In general, commercialization implies that sary to analyze variation among communities (1) production and consumption decisions of and farmers on a much smaller scale, in order farm households are separated and mediated to identify the sites where on-farm conserva- across markets, and (2) product choice and tion is most likely to succeed. input use decisions are based on the princi- Even on smaller geographical scales, ples of profit maximization. Commercial agroecological factors play an important role farmers trade the output of specialized enter- in the intraspecifi c diversity of the crops farm- prises produced with purchased inputs for ers grow, through the varieties they choose the attributes they demand on markets where and how they manage the crop and its seed. transactions are impersonal. Agricultural The relationship of environmental heteroge- production as a whole is reorganized from neity to crop diversity has a stronger basis in many units, each of which reduces a similar the genetics and ecology literature.24 Ethno- set of crops and livestock products into botanical research has shown that farmers fewer, specialized units, each of which pro- choose varieties based on adaptation to soils duces a single crop or livestock product. The and other environmental factors.25 Environ- opportunity costs of producing staple food, mental heterogeneity has also been advanced and of stocking a wide portfolio of varieties as an explanation of farmers’ continued use and crops that suit specifi c seasonal niches of landraces in Turkey.26 Heterogeneity in and consumption needs, rises with compet- agroecological conditions increased the num- ing demands for farmers’ time. ber of different crops and the varieties of The three broad factors described above maize, beans, and squash varieties grown by would lead us, when considering large regions farmers in the state of Puebla, Mexico.27 and highly bred crops, to focus on relatively An extensive micro-economics literature more geographically and commercially iso- on variety adoption and a growing set of lated, less densely populated subregions with case studies about on-farm conservation diffi cult growing environments. It is important provide us with information about the types to recognize that these factors would not nec- of social and economic contexts that may essarily apply to less highly bred crops that lead to a higher probability of conservation
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of genetic diversity. The fi rst obvious factor, More ambiguous is the relationship of which is as important on a local as on a re- other social and economic variables, such as gional scale, is the extent to which villages household wealth and income sources, to and households trade their crop on markets, crop diversity. Smale et al. found that variety or the extent to which their crop production attributes such as suitability for food prepara- is commercially oriented. The more removed tion (tortillas) far outweighed the importance a household is from a major market centre, of household socioeconomic characteristics the higher the costs of buying and selling on in explaining the number of maize landraces the market and the more likely that the grown by individual farmers and the average household relies primarily on its own pro- share of maize area planted to each.33 In three duction for subsistence. sites in Nepal, based on a composite variable Case studies demonstrate that in many of for wealth rank, Rana et al. found that poor the regions of the developing world where households cultivate more coarse-grained, landraces are still grown, either markets for drought-tolerant varieties of rice, while commercially produced seed, markets for the wealthier households grew high-quality va- crop output, or markets for the multiple at- rieties for premium market prices and special tributes that farmers demand from their va- food preparations.34 In the state of Puebla, rieties are incomplete.28 This means that the Mexico, Van Dusen35 found that the greater traits demanded by farmers (grain quality, the wealth of the household, as measured by fodder, suitability for a certain soil type) can- house construction and ownership of durable not be obtained through the production of goods, the less likely the household is to plant modern varieties or procured through imper- a diverse set of maize, beans, and squash sonal market transactions, so that farmers varieties. must rely on their own or neighbours’ pro- In many parts of the developing world, duction for their supply.29 To meet their de- off-farm migration generates a growing pro- mands from their own farm production, they portion of the income of farm households. may need to grow several varieties. Brush et al. found that off-farm employment Cultural identity shapes the tastes and was negatively associated with maintenance preferences for the traits of food prepared of potato diversity in the Andes, indicating from a crop. When the crop is consumed in that the opportunity cost of cultivating many the communities where it is produced, food varieties—which requires labour-intensive and culinary preferences are in turn expressed seed selection and procurement tasks—is in farmers’ selection criteria and in the crop’s signifi cantly higher where other employment genetic structure. Ethnobotanists and anthro- opportunities exist.36 van Dusen found that pologists have extensively documented the diversity in the milpa system decreased as specialized uses of certain landrace varieties local labour markets intensify, or as more for rituals and festivals of cultural signifi - migration to the USA occurs, though these cance, though micro-economic approaches effects were not as pronounced when each and models are less well-equipped to estab- crop was considered singly. Yet off-farm in- lish the linkage between culture and diver- come can also release the cash income con- sity. Brush30 and Zimmerer31 have described straint faced by some farmers, enabling them the role of cultural preferences for diversity to shift their focus from growing varieties for in the continuing cultivation of landraces. sale to growing the varieties they may prefer Brush32 proposes that sites with a high degree to consume. In Chiapas, Mexico, Bellon and of cultural autonomy and an orientation to- Taylor37 found that off-farm employment was ward subsistence cultivation are likely can- associated with higher levels of maize diver- didates for on-farm conservation. sity. Meng38 found the existence of off-farm
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labour opportunities to have no statistically identify the advantageous and disadvanta- signifi cant effect on the likelihood of growing geous traits of their landraces and either wheat landraces in Turkey. select superior local materials or transfer This brief summary demonstrates that a preferred trait from exotic into local ma- social and economic criteria are important terials.40 Participatory breeding can require in determining the likelihood that farmers substantial time investments by farmers, will choose to continue cultivating diverse however.41 A recent analysis in the state of local crops. Though the effects of incomplete Oaxaca, Mexico, showed that farmers as a local markets for crop products and market group obtained nearly a 4:1 benefi t–cost ra- distance seem fairly predictable, the effects tio from participating in a breeding project, of other economic variables, such as the although from the perspective of a private extent of off-farm employment, income and investor, benefi ts are not likely to justify the wealth status, are not easy to predict a prio- cost.42 Furthermore, many public benefi ts of ri unless researchers already have extensive the project would be exceedingly diffi cult, knowledge about farmer decision-making as well as costly, to document. The study and local economies among candidate sites. raises issues concerning the application of Typically, it will therefore be necessary to standard economic methods in similar situ- undertake more empirical research at the ations, and it is important to recognize that household and community levels once can- participatory projects have goals other than didate sites have been identifi ed, in order to generating a high economic rate of return target households and communities for on invested capital.43 Participatory breed- conservation programmes. ing projects exhibit a range of philosophies, approaches and goals, and only some are Options to support on-farm conservation undertaken with the goal of enhancing crop Policies may be classifi ed as either related genetic diversity. to (1) the demand for or (2) the supply of As incomes rise and commercial markets genetically diverse or distinct crop landra- develop, landraces may continue to be grown ces.39 Below we provide some illustrative when there is consumer demand for some examples from developing countries, though unique attribute that cannot be easily bred many of these initiatives are new and their ef- into or transferred to improved varieties. fi ciency in meeting conservation goals given Advanced agricultural economies are char- the level of investment required has not yet acterized by growth in demand for an array been assessed in published literature. of increasingly specialized goods and ser- vices. When consumers are willing to pay Demand-related policies: When markets are price premiums for products that are made less fully developed or they are incomplete, from traditional ingredients or with tradi- the demand for distinct landraces refl ects tional methods, and these products can be primarily the concerns of local farmers readily identifi ed either by their appearance who grow and consume them rather than or by labeling, there may be market-based the tastes and preferences of distant urban incentives for on-farm conservation of certain consumers. Farmers’ demand for local land- landraces—though these markets are likely races of genetic importance can be enhanced to be small. In general, though the income by improving landrace traits they identify elasticity of demand (percentage change in as important, including disease resistance, quantity demanded for a percentage change abiotic tolerance, and palatability as food in income) for staple grains may be low or or fodder. Using participatory methods, even negative, the income elasticity of de- plant breeders can work with farmers to mand for attributes of the grains is higher.
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For example, high-income consumers spend these landraces must be readily identifi able more on rice by paying higher prices for vari- and their attributes maintained through care- eties with preferred eating quality which they ful seed multiplication and production. In substitute for the lower-quality variety con- some countries, landraces that are heteroge- sumed when the income level was lower.44 neous may be blocked by seed regulations Two types of market demand in advanced concerning uniformity. economies have been discussed as poten- In either advanced or developing econo- tially relevant to on-farm conservation of mies, public awareness initiatives can serve genetic resources. One is the consumer de- to increase farmer and consumer knowledge mand for attributes related to the mode of about the benefits generated by on-farm production or seed type, such as organic conservation, enhancing their demand for farming methods or absence of genetically products and seed. In Nepal, Vietnam, and modifi ed organisms. Another is the demand the Andes, diversity fairs have been used to for a unique fl avour, colour, or cooking qual- bring together farmers from one or more ity found in a traditional crop or variety. communities in order to exhibit the range of Brush45 reports an example of a successful materials they use and raise awareness of the “green marketing” programme for ancestral value of crop diversity.50 Rather than award- maize of Cherokee farmers in the USA. The ing prizes for the best individual variety (e.g. widespread implementation of ecoseals46 in on the basis of yield or size), diversity fairs the USA suggests that they are perceived as award farmers or cooperatives for the great- an effective method of altering consumer est crop diversity and related knowledge. In behaviour, though scant empirical research some communities, gatherings similar to has been conducted on the optimal labeling diversity fairs are already customary events, form for different products or the effective- so the incremental costs are low. Though such ness of alternative programmes.47 Falcinelli48 initiatives are gaining popularity in donor describes how labeling systems may promote and NGO seed projects, there appears to be conservation of farro (einkorn, emmer, spelt) little evidence concerning their cost-effective- and lentils in Italy. Restricted labeling sys- ness or impact.51 tems have long been used to ensure con- sumer quality and authenticity for meat, Supply-related policies: In more isolated ar- cheese and wine products in Europe. eas or more diffi cult growing environments Labeling and marketing systems require of developing countries, agroecological and public investments unless consumers are environmental factors exert a more decisive willing to pay price premia large enough to influence on crop genetic diversity than cover the costs, and require fully commercial- commercial markets. From one year to the ized, well-articulated markets for product next, farmers may lose their seed stock due attributes. Therefore it will take time before to disastrous harvests, or diminishing seed they are likely to be effective in many devel- quantities may narrow the genetic diversity oping country contexts. For example, in the variety. Initiatives aimed at supporting Gauchan et al. found that except for tradi- the range and total supply of local seed types tional Basmati (aromatic high-quality) rice, make sense under such conditions. most rice landraces in upland Nepal are The limited supply of quality seed for lo- traded in small-scale informal channels in cal varieties can be an obstacle to farmers’ which market signals for their superior continued maintenance of genetic diversity. qualities are weak relative to those expressed Community genebanks provide a mechanism for modern varieties.49 Furthermore, if such for storing valuable landrace germplasm in attributes are linked to specifi c landraces, a local ex situ form so that farmers have more
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direct access to seed when they need it. and in particular, marketing the seed. When Typically small in size, community gene- projects cease to be funded, the effectiveness banks can only maintain a limited number of of the seed enterprise falters. He argues that accessions and replicates. more must be done to support institutional The economic feasibility of community growth and strengthen farmers’ links with banks is also undermined by the high markets and institutions that are already in covariance of local crop yields, which place. means that many farmers in a community One prerequisite for building such institu- face similar seed defi cits and surpluses. tions is an understanding of existing seed Cromwell52 cautions that access to seed exchange networks, whether formal or infor- through the community system is not al- mal. Another is an understanding of how ways egalitarian, since seed is often hoard- public systems might be adapted in order to ed, or is of poor quality. promote the use by farmers of a more diverse If farmers prefer to store seed on an in- range of materials. In Nepal, informal re- dividual basis but desire access to knowl- search and development (IRD) has been used edge about the location of other seed types to test, select, and multiply seeds.55 A small in surrounding villages, biodiversity regis- quantity of seed of recently released and/or ters are one low-cost, modest alternative.53 nearly fi nished varieties is distributed to a A community biodiversity register is a re- few farmers in a community to grow under cord of landraces cultivated by local farmers. their own conditions with their own prac- In addition to the names of the farmers who tices. First practiced by Lumle Agricultural grow them and the place of origin, the reg- Research Centre, this approach has now been ister may include data about the agromor- adopted by other organizations in Nepal and phological and agronomic characteristics of India for variety testing and dissemination.56 landraces, agroecological adaptation, and Such approaches incur no substantive addi- special uses. tional costs but speed the time to use of vari- Registers can serve as an information tool eties since they shortcut release procedure. that reduces the transaction costs of locating They are likely to enhance diversity since and exchanging diverse materials, but do not each farmer receiving seed exerts his or her solve the problem of a shortage in seed sup- own selection pressures. ply relative to demand. National govern- ments, NGOs and donors have invested in local-level seed projects as a means of deliv- Economic considerations in conserving ering a better range and quantity of seed crop genetic resources ex situ types where state seed enterprises have been While the economic benefi ts of conserving ineffective and the commercial seed sector germplasm ex situ are diffi cult to estimate has been too slow to grow or too limited in for the reasons explained in Section I, costs focus. Reviewing these efforts to date, Tripp of conservation can be estimated directly by concluded that few of these projects have compiling the data from records kept by gene- achieved the goal of establishing viable small- bank managers.57 One reason for focusing on scale seed production enterprises.54 He cites costs rather than benefi ts is that if the costs as a principal obstacle the failure to recognize of conserving an accession are shown to be that seed provision requires more than mul- lower than any sensible lower-bound estimate tiplication. Projects internalize the costs of of benefi ts, for many decisions, it may not be managing contacts involved in obtaining necessary to undertake a challenging exercise source seed and establishing quality control in benefi t estimation. Cost information is also procedures, arranging for seed conditioning, crucial when a genebank manager pursues
SUSAN BRAGDON (EDITOR) 100 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
the objective of minimizing operational costs For example, average annual storage costs subject to the technology and funding that is can be calculated as the total costs of storage available. The methodology presented here in any year divided by the number of acces- was developed in greater detail and with sions in a storage collection. Depending on empirical examples by Pardey et al.58 the type of inputs used in production, average cost can be represented in terms of average Economic framework variable costs, average fi xed costs, or the sum The framework of production economics pro- of both. Figure A1.3 shows the expected re- vides an approach for analyzing a genebank lationship of changes in average and mar- facility and its operations. The essential notion ginal costs to changes in the amount of output of production economics is that outputs are (for example, the number of stored seeds). produced with some combination of inputs. Average fixed or quasi-fixed costs generally The institutions and technological environ- decline monotonically as output increases— ment that prevail at a point in time prede- as when a given fi xed cost, such as the cost termine the combination of inputs, though of the genebank facility, is charged against a these factors change over time. Applied to greater amount of output, such as more the case of a genebank, the inputs of labour, stored seeds. By contrast, average variable cost equipment, and acquired seeds are processed is in general U-shaped, with a minimum. As to produce outputs in the form of stored, vi- the number of accessions increases from a able seeds and accompanying information. small size, the operation becomes more effi - Properly stored seeds and relevant informa- cient and average variable cost decreases. tion can be disseminated immediately for After a certain minimum level of cost, it in- current use, or placed in the storage facility creases with the number of accessions due to as options that can be exercised (repeatedly excessive use of variable resources given if necessary) in future years. fi xed factors. Total costs of genebank operation are Marginal costs are the addition to total broadly classifi ed as variable (labour and non- costs from the addition of the last unit of labour), capital, and quasi-fi xed. Quasi-fi xed output. The marginal costs of storage are the inputs are often called “human capital,” refer- increase in total costs of storage that are incurred ring to skilled labour with scientifi c expertise when another accession is added to the col- such as genebank manager and laboratory lection. It is typically assumed that marginal scientists. Technicians and temporary work- costs eventually increase due to the law of ers, or those paid on an hourly basis, are diminishing marginal returns. The law of treated as variable labour inputs. Variable diminishing marginal returns reflects the inputs are those that are sensitive to the size proposition from classical economics, still of the genebank operation, capital inputs as widely recognized as empirically valid, that those that are not, and quasi-fi xed inputs as the physical productivity of labour declines a group of inputs that are neither fi xed nor as more labour is added to production while variable, but "lumpy." A quasi-fi xed input is all other inputs are held constant. "lumpy" in the sense that it is a discrete, Marginal costs are in practice diffi cult to indivisible unit that cannot be adjusted eas- estimate even with a long time series of his- ily with fl uctuation in the extent of genebank torical data, since they depend on the size of operations; it is variable in that it is more the collection. Though the marginal cost per easily adjusted than a capital item such as the accession is the relevant criterion for decisions building itself. regarding lumping and splitting of accessions, Costs in each class can be then summa- theory principles are often used to “guess” rized in terms of average and marginal costs. marginal cost. We can assume that (1) over the
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Fig. A1.3. Theoretical marginal and average cost curves.
Costs Average cost
Marginal cost
Average variable cost
Average fixed cost
Quantity (e.g. number of accessions) relevant size range, marginal costs are con- However, if these data are unavailable, data stant, (2) curators are operating at the most on purchase prices and the expected service effi cient point possible, where average costs life of the item, combined with a real inter- have reached a minimum level and equal to est rate (nominal interest rate minus infl ation marginal costs, or (3) either capital or quasi- rate), are all that is necessary to estimate them fi xed inputs are utilized at a less-than-full directly (see Appendix). capacity, so that marginal costs are always less The category of information management than average cost. For practical purposes, the includes all activities related to database man- third case is generally assumed and the aver- agement and publications. Software licensing age costs are interpreted as upper bounds of fees and skilled labour for database operations the corresponding marginal costs. constitute a large portion of information man- agement costs. General management includes Analyzing the costs of genebank operations all administrative operations and other ac- Data: Table A1.1 provides some examples of tivities that are not directly attributable to cost elements for each genebank operation specifi c cost categories. Electricity services, by type of input. All staff with post-gradu- physical facilities and computers, which may ate degrees has been classifi ed as quasi-fi xed be used in other operations but whose total labour, though the role of staff rather than costs cannot be disaggregated, are also classi- their degree or title is a more relevant crite- fi ed here. Capital items that are charged on a rion. Commercial rental rates often serve as lease-basis within the organization, such as estimates of the annualized cost of capital. computers or vehicles, can be treated as non-
SUSAN BRAGDON (EDITOR) 102 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Table A1.1. Examples of cost elements in genebank operationa Operations Non-capital Capital Quasi-fi xed Labour Non-labour Information • Information • For data entry • Computer • Servers management manager • For equipment supplies • Computer (including data • Data analyst maintenance • Publication- equipment analysis) related expenses • Software licences General • Genebank head • Secretaries • Offi ce expenses • Buildings management or genebank • Unallocatable • Electricity • Unallocatable manager labour • Unallocatable equipment expenses Storage • Genebank • For maintaining • Electricity for • Cold storage (medium term curator and operating storage rooms room and long term) refrigeration • Refrigeration equipment and equipment facility • Storage shelves and seed container Viability testing • Genebank • Lab technician • Chemicals and • Lab equipment curator • Worker supplies and supply Acquisition • Genebank curator • Lab technician • Chemicals and • Lab equipment • Scientist for seed • Temporary supplies and facility health testing worker • Seed envelope Safety-duplication • Genebank • Temporary • Packing supplies curator worker • Shipping cost Dissemination • Genebank • Lab technician • Chemicals and • Equipment and curator • Temporary supplies facility worker • Packing supplies • Shipping cost Regeneration • Genebank • Field worker • Chemicals and • Farming land curator • Equipment supplies for fi elds • Screenhouse • Field manager technician • Fuel for vehicle • Seed dryer • Temporary • Electricity for • Seed cleaning worker drying machine equipment Characterization • Field manager • Field worker • Lab chemicals • Lab equipment • Lab scientist for agronomic and supplies and facility characterization • Lab technician for molecular characterization Evaluation • Field manager • Lab technician • Lab chemicals • Lab equipment • Lab scientist • Field worker and supplies and facility Pre-breeding • Field manager • Lab technician • Lab chemicals • Lab equipment • Lab scientist • Field worker and supplies and facility Other researchers • Genebank curator • Lab technician • Lab chemicals • Lab equipment • Lab scientist and supplies and facility a Pardey, P.G., B. Koo, B. D. Wright, M.E. van Dusen, B. Skovmand and S. Taba. 2001. Costing the Conservation of Genetic Resources: CIMMYT's ex situ maize and wheat collection. Crop Science 41:1286–1299.
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labour rather than as capital costs. Manage- the genebank, but annual genebank budget ment encompasses all genebank operations, may include all or none of these costs. Third, and its cost should be allocated to each indi- annualized capital costs (including the costs vidual operation according to its managerial of physical facilities, land and other donated complexity and relative importance. equipment) are fully represented in the eco- The major cost items in seed storage are nomic cost, while only parts of them may be the electricity for the refrigeration system and considered in an annual budget. the capital equipment. The cost of viability The average cost of each operation is cal- testing consists of supplies and the labour of culated by dividing the total cost by the laboratory technicians. The category of acqui- number of accessions processed. We can then sition includes the costs of seed health testing compare average costs among operations or and seed handling. The cost of collecting from in a single operation over time, as an indica- remote regions might also be included. tor of efficiency. Questions related to the Both safety-duplication and dissemina- lumping and splitting of accessions might tion involve packing and shipping seed also be addressed within this framework. samples, though dissemination is much more Based on these fi gures, we can estimate the frequent and costly than duplication. Part of average cost of storing an accession for one the costs for seed health testing (including year or in perpetuity. For practical purposes, capital items) should be allocated to the cat- as explained above, average cost can in turn egory of dissemination costs when phytos- be taken as an estimate of marginal cost. anitary certifi cates are required. The average cost of storing an accession Regeneration is one of the most expensive depends critically on the status of each acces- activities in the genebank operation. This sion and genebank protocol. If the accession category includes both the fi eldwork (e.g. is viable and is stored in suffi cient quantity, land preparation, planting, weeding, harvest- then the cost of conserving an accession for ing, etc.) for seed production and the seed one year is very low. If the accession must be processing (such as drying and cleaning) for regenerated due to either low viability or low storage. stock, then the cost includes regeneration and Once each cost element has been assessed viability testing. The same logic applies to the and management costs have been allocated cost of distributing accessions to requestors. to operations, the overall composition of costs The magnitude of the cost of conserving and relative magnitude of each element can an accession in perpetuity depends not only be examined. The sum of all elements then on the status of the accession but also on the represents the total annual economic cost of time frame of each operation and the real operating the genebank. One point that may rate of interest. Most genebanks have their require emphasis is that the annual econom- protocols regarding the intervals of some ic cost estimated here may differ from the operations such as viability testing, regen- annual genebank budget in several respects. eration and dissemination. For example, First, overhead costs may be omitted from a depending on the crop, the interval of viabil- genebank budget but included in its eco- ity testing can be set at 5 or 10 years, and the nomic cost. If a genebank is operated as part regeneration interval can range from 20 to of a larger institution, it shares some admin- 30 years for seeds in medium-term storage istrative services (library, fi nancial, and secu- and up to 100 years for those in long-term rity services) with other programmes. Second, storage. The regeneration interval is further the cost of programme-wide operations such affected by the magnitude of demand for the as seed health testing should be allocated accession—for accessions demanded with according to the proportion accomplished by high frequency, regeneration is required
SUSAN BRAGDON (EDITOR) 104 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
more often to replenish the stock. The pat- 8 Gollin, D., M. Smale and B. Skovmand. 2000. tern of requests for seed samples is diffi cult Optimal search for traits in ex situ collections to predict, but it is possible to estimate the of wheat genetic resources. Am. J. Agricultural Economics 82(4):812-827. dissemination interval using historical dis- 9 Zohrabian, A. 2000. An economic model of semination data. The interest rate can be utilization of U.S. crop germplasm collection: assumed to range from 2% to 6%. The case of soybean collection and soybean cyst nematode. Ph.D. thesis, Auburn University. 10 Smale, M., K. Day-Rubenstein, A. Zohrabian Endnotes and T. Hodgkin. 2001. Discussion Paper No. 82. 1 Orians, G.H., G.M. Brown, Jr., W.E. Kunin and International Plant Genetic Resources Institute J.E. Swierzbinski (ed). 1990. The Conservation (IPGRI) and International Food Policy Research and Valuation of Biological Resources. University Institute (IFPRI), Washington, DC. of Washington Press, Seattle. 11 Cornes, R. and T. Sandler. 1986. The Theory of Pearce, D. and D. Moran. 1994. The Economic Externalities, Public Goods, and Club Goods. Value of Biodiversity. Earthscan, London. Cambridge University Press, Cambridge. Swanson, T. 1996. Global Values of Biological 12 Heisey, P., M. Smale, D. Byerlee and E. Souza. Diversity: the Public Interest in the Conservation 1997. Wheat Rusts and the Costs of Genetic Di- of Plant Genetic Resources for Agriculture. Plant versity in the Punjab or Pakistan. Am. J. Agricul- Genetic Resources Newsl. 105:1-7. tural Economics 79:726-737. 2 Nunes, P. A.L.D. and J. C.J.M. van den Bergh. 13 Sandler, T. 1999. Intergenerational Public Goods: 2001. Economic valuation of biodiversity: sense Strategies, Effi ciency and Institutions. In I. Kaul, or nonsense? Ecological Economics 19: 203-222. I. Grunberg and M.A. Stein (eds.), Global Public 3 Brown, G.M. and J.H. Goldstein. 1984. A model Goods. United Nations Development Programme for valuing endangered species. J. Environmental and Oxford University Press, Oxford. Economics and Management 11: 303-309. 14 Maxted, N., B.V. Ford-Lloyd and J.G. Hawkes Weitzman, M. 1993. What to preserve: an applica- (eds.). 1997. Plant Genetic Conservation: The In tion of diversity theory to crane conservation. situ Approach. Chapman and Hall, London. Quarterly J. Economics 108: 157-184. Brush, S.B. (ed.) 2000. Genes in the Fields: On- Simpson, R.D., R.A. Sedjo and J.W. Reid. 1996. Farm Conservation of Crop Diversity. Interna- Valuing biodiversity for use in pharmaceutical tional Plant Genetic Resources Institute (IPGRI), research. J. Political Economy 104 (1): 163-185. Rome, International Development Research Polasky, S. and A. Solow. 1995. On the Value of a Centre (IDRC), Ottawa, and Lewis Publishers, Collection of Species”, J. Environmental Economics Boca Raton. and Management 29(3), November:298-303. 15 Bellon, M.R., J.-L. Pham and M.T. Jackson. 1997. Evenson, R.E. and S. Lemarié. 1998. Crop Genetic conservation: a role for rice farmers. In Breeding Models and Implications for Valuing N. Maxted, B.V. Ford-Lloyd, and J.G. Hawkes Genetic Resources. In M. Smale (ed.), Farm- (ed.), Plant Genetic Conservation: The In-Situ ers, Gene Banks and Crop Breeding: Economic Approach, pp. 263-289, Chapman and Hall, Analyses of Diversity in Wheat, Maize and Rice. London. Kluwer Academic Publishers, Dordrecht and 16 Brown, A.H.D. 1997. The genetic structure of International Maize and Wheat Improvement crop landraces and the challenge to conserve Center, Mexico DF. them in situ on farms. In N. Maxted, B.V. Ford- 4 Krutilla, J.V. 1967. Conservation reconsidered. Lloyd, and J.G. Hawkes (eds.). Plant Genetic Am. Economic Review 57 (3):777-786. Conservation: The In situ Approach. Chapman 5 Hausman, J. (ed.). 1993. Contingent Valuation: A and Hall, London. Critical Assessment. Elsevier, Amsterdam. 17 Maxted, N., B.V. Ford-Lloyd and J.G. Hawkes 6 Evenson, R.E., D. Gollin and V. Santaniello. 1998. (eds.). 1997. Plant Genetic Conservation: The In Agricultural Values of Plant Genetic Resources. situ Approach, pp. 15-39. Chapman and Hall, CABI, FAO and University of Tor Vergata, Rome. London. 7 Evenson, R.E. and D. Gollin. 1997. Genetic re- 18 Stiglitz, J. 1987. Some theoretical aspects of sources, international organizations, and improve- agricultural policies. The World Bank Research ment in rice varieties. Economic Development and Observer 2:43-60. Cultural Change 45 (3):471-500. 19 Boserup, E. 1965. Conditions of Agricultural Growth. Aldine Publishing Company, Chicago.
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Hayami, Y. and V.W. Ruttan. 1985. Agricultural tural Economics Association, San Diego, August Development: An International Perspective. 7-10, 1994. Revised and Extended Edition. Johns Hopkins Bellon, M.R. and J.E. Taylor. 1993. Folk soil University Press, Baltimore. taxonomy and the partial adoption of new seed 20 Pingali, P. 1997. From subsistence to commercial varieties. Economic Development and Cultural production systems. Am. J. Agricultural Econom- Change 41:763-786. ics 79:628-634. 30 Brush, S.B. 1995. In situ conservation of landraces 21 Byerlee, D. 1996. Modern varieties, productivity, in centers of crop diversity. Crop Science 35:346- and sustainability: recent experience and emerging 354. challenges. World Development 24:697-718. 31 Zimmerer, K.S. 1996. Changing Fortunes: Biodi- Perales, R.H., S.B. Brush and C.O. Qualset. 1998. versity and Peasant Livelihood in the Peruvian Agronomic and economic competitiveness of Andes. University of California Press. Berkeley. maize landraces and in situ conservation in 32 Brush, S.B. (ed.) 2000. Genes in the Fields: On- Mexico. In M. Smale (ed.), Farmers, Gene Banks Farm Conservation of Crop Diversity. Interna- and Crop Breeding: Economic Analyses of Di- tional Plant Genetic Resources Institute (IPGRI), versity in Wheat, Maize, and Rice, pp. 109-126, Rome, International Development Research Dordrecht and Mexico, DF, Kluwer Academic Centre (IDRC), Ottawa, and Lewis Publishers, Press and International Maize and Wheat Im- Boca Raton. provement Center. 33 Smale, M., M. Bellon and J.A. Aguirre Gomez. 22 Morris, M.L. 1998. Maize Seed Industries in 2001. Maize diversity, variety attributes, and Developing Countries. Lynne Rienner and CIM- farmers’ choices in Southeastern Guanajuato, MYT, Boulder. Mexico. Economic Development and Cultural 23 Ibid. Change 50 (No. 1):201-225. 24 Marshall, D.R. and A.H.D. Brown. 1975. Opti- 34 Rana, R.B., D. Gauchan, D.K. Rijal, S.P. Khati- mum sampling strategies in genetic conserva- wada, C.L. Paudel, P. Chaudhary and P.R. Tiwari. tion. Pp. 53-80 In Crop Genetic Resources for 2000. Socioeconomic data collection and analysis: Today and Tomorrow (O.H. Frankel and J.G. Nepal. Pp. 54-56 in D. Jarvis, B. Sthapit, and L. Hawkes, eds.). Cambridge University Press, Sears (ed.), Conserving Agricultural Biodiversity Cambridge. In situ: A Scientifi c Basis for Sustainable Agri- 25 Zimmerer, K.S. and D. Douches. 1991. Geograph- culture. International Plant Genetic Resources ical approaches to crop conservation: the parti- Institute (IPGRI), Rome. tioning of genetic diversity in Andean potatoes. 35 van Dusen, E. 2000. In situ Conservation of Crop Economic Botany 45 (2):176-189. Genetic Resources in Mexican Milpa Systems. 26 Brush, S.B. and E. Meng. 1998. Farmers’ valua- PhD thesis. University of California, Davis, USA. tion and conservation of crop genetic resources. 36 Brush, S.B., J.E. Taylor and M.R. Bellon. 1992. Genetic Resources and Crop Evolution 45:139-150. Biological diversity and technology adoption 27 Van Dusen, E. 2000. In situ Conservation of Crop in Andean potato agriculture. J. Development Genetic Resources in Mexican Milpa Systems. Economics 38:365-387. PhD Thesis. University of California, Davis, USA. 37 Bellon, M.R. and Taylor, J.E. 1993. Folk soil 28 Brush, S.B. and E. Meng. 1998. Farmers’ valua- taxonomy and the partial adoption of new seed tion and conservation of crop genetic resources. varieties. Economic Development and Cultural Genetic Resources and Crop Evolution 45:139-150. Change 41:763-786. Brush, S.B., J.E. Taylor and M.R. Bellon. 1992. 38 Meng, E.C.H. 1997. Land allocation decisions Biological diversity and technology adoption and in situ conservation of crop genetic resourc- in Andean potato agriculture. J. Development es: The case of wheat landraces in Turkey. Ph.D. Economics 38:365-387. thesis, University of California, Davis. Smale, M., M. Bellon and J.A. Aguirre Gomez. 39 Bellon, M.R. 2000. Demand and Supply of Crop 2001. Maize diversity, variety attributes, and Infraspecifi c Diversity on Farms: Towards a farmers’ choices in Southeastern Guanajuato, Policy Framework for On-Farm Conservation. Mexico. Economic Development and Cultural CIMMYT Economics Working Paper 01-01. Inter- Change 50 (Number 1):201-225. national Maize and Wheat Improvement Center 29 Renkow, M. and G. Traxler. 1994. Incomplete (CIMMYT), Mexico, DF. Adoption of Modern Cereal Varieties: The Role 40 Sperling, L., M. Loevinsohn and B. Ntambovura. of Grain-Fodder Tradeoffs. Selected paper pre- 1993. Rethinking the farmer’s role in plant breed- sented at the annual meeting of the Am. Agricul- ing: local bean experts and on-extension selection
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in Rwanda. Experimental Agriculture 29:509-519. Centre (IDRC), Ottawa, and Lewis Publishers, Maurya, D.M., A. Bottrall and J. Farrington. Boca Raton. 1988. Improved livelihoods, genetic diversity 46 Ecoseal = “a marketing practice used in the and farmers’ participation: a strategy for rice- U.S. to emphasize a product’s environmental breeding in rainfed areas of India. Experimental attributes by displaying an environmental seal of Agriculture 24:311-320. approval endorsed by an independent organi- Sthapit, B.R., K.D. Joshi and J.R. Witcombe. 1996. zation.” (from Teisl, Roe and Levy—see next Farmer participatory cultivar improvement. III: endnote). Participatory plant breeding, A case of high alti- 47 Tiesl, M.F., B. Roe and A. S. Levy. 1999. Eco- tude rice from Nepal. Experimental Agriculture certifi cation: Why it may not be a “Field of 32:479-496. Dreams.” Am. J. Agricultural Economics 81 Witcombe, J.R., A. Joshi, K.D. Joshi and B.R. (No. 5):1066-1071. Sthapit. 1996. Farmer participatory cultivar 48 Falcinelli, M. 1997. Il miglioramento genetico improvement. I: Varietal selection and breed- delle colture tipiche locali. L’Informatore Agrario ing methods and their impact on biodiversity. 47:73-75. Edizioni l’Informatore Agrario, s.r.l, Experimental Agriculture 32:445-460. Verona. 41 Thiele, G., G. Gardiner, R. Torrez and J. Gabriel. 49 Gauchan, D., P. Chaudhary, B. Sthapit, M.P. 1997. Farmer involvement in selecting new vari- Upadhaya, M. Smale and D. Jarvis. 2001. An eties: Potatoes in Bolivia. Experimental Agricul- Analysis of Market Incentives for On Farm ture 33:275-90. Conservation of Rice Landraces in Central Terai, Rice, E., M. Smale and J.-L. Blanco. 1998. Farm- Nepal. paper presented at the National In situ ers’ use of improved seed selection practices in Conservation of Agrobiodiversity On-farm Mexican maize: evidence and issues from the Workshop held on April 24-26, 2001, Lumle, Sierra de Santa Marta. World Development 26(9): Nepal. 1625-1640. 50 Tapia, M.E. and A. Rosa. 1993. Seed fairs in the 42 Smale, M., M. Bellon, A. Aguirre, I. Manuel, Andes: A strategy for local conservation of plant J. Mendoza, A. M. Solano, R. Martínez , A. genetic resources. In W. de Boef, K. Amanor and Ramírez. 2001. The Economic Costs and Benefi ts K. Wellard, with A. Bebbington (eds.). Cultivat- of a Participatory Project to Conserve Maize ing Knowledge. Intermediate Technology Publi- Landraces on Farms: A Case Study in the Central cations, London. Valleys of Oaxaca, Mexico. Mimeo. International Rijal, D.K., R. Rana, A. Subedi and B.R. Sthapit. Maize and Wheat Improvement Center (CIM- 2000. Adding value to landraces: community- MYT), El Batan, Mexico. based approaches for in situ conservation of 43 Tripp, R. 2000. Seed Provision and Agricultural plant genetic resources in Nepal. Pp. 166-172 in Development: The Institutions of Rural Change. E. Friis-Hansen and B. Sthapit (eds.). Participa- Overseas Development Institute, London, James tory Approaches to the Conservation and Use Currey, Oxford, and Heinemann, Portsmouth (N.H.) of Plant Genetic Resources. International Plant 44 Unnevehr, L., B. Duff and B.O. Juliano. 1992. Genetic Resources Institute (IPGRI), Rome. Consumer Demand for Rice Grain Quality. Ter- Jarvis, D.I., L. Myer, H. Klemick, L. Guarino, M. minal Report of IDRC Projects. National Grain Smale, A.H.D. Brown, M. Sadiki, B.R. Sthapit and Quality (Asia) and International Grain Quality T. Hodgkin. 2000. A Training Guide for In situ Economics (Asia). International Development Conservation On-farm. Version 1. International Research Centre (IDRC), Ottawa and Interna- Plant Genetic Resources Institute (IPGRI), Rome. tional Rice Research Institute (IRRI), Los Banos, 51 Tripp, R. 2000. Seed Provision and Agricultural Laguna, Philippines. Development: The Institutions of Rural Change, Pingali, P., M. Hossain and R.V. Gerpacio. p. 116. Overseas Development Institute, London, 1997. Asian Rice Market: Demand and Supply James Currey, Oxford, and Heinemann, Ports- Prospects. Chapter 6.in Asian Rice Bowls: the mouth (N.H.) Returning Crisis? Pp. 126-144, CAB International 52 Cromwell, E. 1996. Governments, Farmers, and and International Rice Research Institute (IRRI), Seeds in a Changing Africa, p. 127. CABI, Wall- Wallingford and Los Baños. ingford, UK. 45 Brush, S.B. (ed.) 2000. Genes in the Fields: On- 53 Rijal, D.K., A. Subedi, M.P. Upadhaya, R.B. Farm Conservation of Crop Diversity. Interna- Rana, P. Chaudhary, P.R. Tiwari, R.K. Tiwari, tional Plant Genetic Resources Institute (IPGRI), B.R. Sthapit and D. Gauchan. 2001. Community Rome, International Development Research biodiversity registers: developing community-
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based databases for genetic resources and local knowledge in Nepal. Paper prepared for the First National Workshop of the Project, Strengthening Scientifi c Basis of In situ Conservation of Agro- biodiversity On-farm: Nepal, 24-26 April, 2001, Lumle, Nepal. 54 Tripp, R. 2000. Seed Provision and Agricultural Development: The Institutions of Rural Change, pp. 133-134. Overseas Development Institute, London, James Currey, Oxford, and Heinemann, Portsmouth (N.H.) 55 Joshi, K.D. and B.R. Sthapit. 1990. Informal research and development (IRD): A new approach to research and extension. Lumle Agricultural Research Centre Discussion Paper No. 90/4. Lumle Agricultural Research Centre, Pokhara, Nepal. 56 Ibid. Joshi, K.D., M. Subedi, K.B. Kadayat, R.B. Rana and B.R. Sthapit. 1997. Enhancing on-farm varietal diversity through participatory variety selection: A case study of Chaite rice in Nepal. Experimental Agriculture 33:1-10. 57 Burstin, J., M. Lefort, M. Mitteau, A. Sontot and J. Guiard. 1997. Towards the assessment of the cost of gene bank management: conservation, regeneration and characterization. Plant Varieties and Seeds 10:163-172. Epperson, J.E., D. Pachico and C. L. Guevara. 1997. A cost analysis of maintaining cassava plant genetic resources. Crop Science 37:1641-9. Pardey, P.G., B. Koo, B. D. Wright, M.E. van Du- sen, B. Skovmand and S. Taba. 2001. Costing the Ex situ Conservation of Genetic Resources: Maize and Wheat at CIMMYT. Crop Science. 58 Pardey, P.G., B. Koo, B. D. Wright, M.E. van Du- sen, B. Skovmand, and S. Taba. 2001. Costing the Conservation of Genetic Resources: CIMMYT's Ex situ maize and wheat collection. Crop Science 41:1286–1299.
SUSAN BRAGDON (EDITOR) 108 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Appendix. In perpetuity costs of recurrent expense and annualized cost of capital.a
The in perpetuity cost of an operation that is performed every nth years from time zero with a cost of X dollars, (in other words, the present value of an item with a service life of n years purchased at time zero for X dollars and repurchased every nth year), is given by
n X X 1 1 C = X ++ +... = X 1+ + +... 0 (1+r)n (1+r)2n [ (1+r)n (1+r)2n ]
1 C=n X 1 (1) 0 [ n ] where a = <1 1–a 1+r
For example:
The present value of a service costing A dollars purchased every year from time 0 is given by
1 1 1 C= A a = <1 (2) 0 [ 1–a ] where 1+r
For example, if it costs $10 to store one accession of germplasm per year, the present value of the cost of storing that accession in perpetuity is $260 with 4% interest rate.
To calculate the annualized user cost A of an item costing X dollars purchased every n years, we need to solve for A in terms of X by setting
1 n C=C0 0
and rearranging terms.
1–a 1 (3) A=[ n ]X where a = <1 1–a 1+r
a Pardey, P.G., B. Koo, B. D. Wright, M.E. van Dusen, B. Skovmand, and S. Taba. 2001. Costing the Conservation of Genetic Resources: CIMMYT's Ex situ Maize and Wheat Collection. Crop Science 41:1286-1299.
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Annex 2: Changing roles of private and public agricultural research and effects on the utilization, access to, and conservation of PGR
Changes in levels and scope of while public sector investment only grew at agricultural research investment by about 1.5% annually (Fig. A2.1). Over some private and public institutions periods, private sector investment may have Long-term data series on private and public grown even faster in developing countries investment in agricultural research for both than in industrialized countries, albeit from developing and developed countries are dif- a very low base.3 Private sector investment fi cult to obtain.1 Nonetheless, the available in developing countries is still a fairly low evidence suggests that since the Second proportion (just over 5% of the total) of all World War, the public sector has fi nanced agricultural research expenditure in those most of the agricultural research investment countries4 (Fig. A2.1). in developing countries. In industrialized Many factors are thought to have contrib- countries, the level of private sector invest- uted to this rapid rate of increase in private ment in agricultural research has been much agricultural research investment. These in- more comparable to the level of public sec- clude new technological opportunities re- tor investment, but historically the public lated to scientific advances, which have sector totals were higher in most countries. lowered the costs of doing research; changes The composition of agricultural research in in intellectual property regimes that have the two sectors has also been different. For allowed private sector fi rms to capture more example, in industrialized countries, a great of the benefi ts that result from research; new deal of the past private sector research has institutional structures for public and private concentrated on food and related products, sector research collaboration and technology farm machinery and agricultural chemicals. transfer, and increased globalization of agri- Research on basic biological science, plant cultural input markets.5 breeding or livestock improvement, or In at least one area—agricultural biotech- agronomy was more likely to be conducted nology—by the late 1990s, these trends were by the public sector. In other words, public thought to be leading to the creation of mul- sector research has been much more farm- tinational “life sciences” giants, with domi- focused than private sector research in most nant positions in pharmaceuticals, chemicals rich countries, and somewhat more focused and other agricultural inputs such as seed.6 on fundamental scientifi c research. Private However, by the end of the century com- sector research has invested more heavily pany executives began to realize fundamen- in farm-related than farm-focused markets.2 tal differences between pharmaceutical and As plant breeding investment is particularly agricultural industries. Coupled with con- relevant to issues of utilization, access, and sumer resistance to agricultural biotechnol- conservation of plant genetic resources, avail- ogy in some rich countries, these differences able information on plant breeding will be might result in a future industry division discussed in greater detail below. into distinct but related categories such as In more recent years, private investment large pharmaceutical fi rms, large chemical in agricultural research has grown much fi rms and large agricultural input fi rms.7 At more rapidly than public investment. the moment, there are several large multi- Depending on the indicator used, this ac- national fi rms, with headquarters in Europe celeration in private investment might be and North America, with varying degrees dated to about 1980, about 1970, or even of ownership of or joint ventures with agri- earlier. As an example of this acceleration, cultural input fi rms such as seed companies. from about 1985 to about 1995, private sector These include Monsanto, Syngenta (formed investment in agricultural research in indus- from a merger and spinoff between Novartis trialized countries grew by over 4% per year, and AstraZeneca8), Aventis (created from a
SUSAN BRAGDON (EDITOR) 110 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Fig. A2.1. Agricultural R&D expenditures (excluding Eastern Europe, Former Soviet Union).* Millions of 1993 international US dollars
* Source: Pardey, P.G. and N.M. Beintema. 2001. Slow Magic: Agricultural R&D a Century After Mendel. IFPRI Food Policy Report. IFPRI, Washington, DC.; Alston, J.M., P.G. Pardey and V.H. Smith (eds.). 1999. Paying for Agricultural Productivity. Baltimore and London: published for IFPRI by The Johns Hopkins University Press.
merger of Hoechst and Rhône-Poulenc), countries with low prices and overestimate DuPont/Pioneer and Dow Agrosciences. A research investments in countries with high somewhat smaller Mexican company, Em- prices.10 presas la Moderna, is nonetheless the world’s leading private supplier of vegetable General differences and fruit seeds.9 Although private sector agricultural re- search investment has grown rapidly in both Differences between developing and industrialized and developing countries, developed countries, and among regions this paper has already noted that the level Most of the monetary comparisons across of private sector spending is much higher countries in this chapter are made using in industrialized countries. This probably international dollars based on purchasing means that the composition of total agricul- power parity conversions, rather than of- tural research also differs between devel- fi cial exchange rates. This is because com- oped and developing countries. Although parisons using offi cial exchange rates tend research on agricultural chemicals, farm to underestimate research investments in machinery and processing of agricultural
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products is conducted in developing coun- public research. If both public and private tries, relatively more developing country totals were included, industrialized countries agricultural research has probably been would have been investing 5.4% of AgGDP conducted on plant breeding and farm- in research. On the other hand, developing level agronomy. countries were only investing about 0.6% of Perhaps because of the greater relative their total AgGDP in public research, and this importance of public sector agricultural re- percentage would increase very slightly if search in developing countries, the rate of private research were included. Developing growth in public sector investment has been regions where public research investments much higher in developing countries than had grown more slowly, such as Latin Amer- in developed countries. For example, from ica and Sub-Saharan Africa, were still invest- 1976 through 1996, public sector research ing a higher percentage of their AgGDPs in increased at an annual rate of 4.5% in devel- research than other regions where public oping countries compared with 1.9% in research expenditures had grown more rap- developed countries.11 Over the last five idly, such as China and other Asian coun- years of this period, public sector research tries.14 In fact, because China’s AgGDP also grew at a very slow rate in industrialized grew extremely rapidly between 1976 and countries, and in some countries such as the 1995, the percentage of AgGDP that China United States probably declined.12 Even spent on research remained almost constant though public sector research investments at just over 0.4%, the lowest fi gure for any have also decelerated in developing coun- major world region.15 tries, they were still growing at 3.6% annu- ally in the fi rst half of the 1990s.13 Trends in plant breeding This overall increase in public agricul- As noted from the beginning, the agricultural tural research investments in developing research area with the strongest ties to the countries conceals some marked regional utilization of, access to, and conservation of differences, however. Public agricultural PGR is plant breeding. Plant breeding related research spending has grown very rapidly activities can be classifi ed as: (1) germplasm over much of the past 25 or 30 years in or PGR conservation, either ex situ or in situ; China, other Asian countries and the Pacifi c, (2) basic research; (3) source material devel- and West Asia and North Africa. In Latin opment; (4) line development; (5) cultivar America, public research expenditures grew development, and (6) seed production and very slowly over much of the 1980s, but marketing.16 These activities have alternative- picked up somewhat in the early 1990s. ly been classifi ed by Frey17 as plant breeding Public research investment in sub-Saharan research, more or less equivalent to (2) but not Africa grew more slowly than in any other including basic research on plant molecular world region, including the developed coun- biology; germplasm enhancement, roughly tries, and in the early 1990s actually declined equivalent to (3) and (4); and cultivar devel- somewhat. opment, equivalent to (5). Growth rates in research investments are In general, the private sector tends to take only one of several ways, however, that broad over more and more of these functions with comparisons can be made among different increasing commercialization of agriculture, countries or world regions. The levels of beginning with seed production and market- public research investment in developed ing (Fig. A2.2). In addition to the level of com- countries imply that in the mid-1990s they mercialization, a number of other factors have were investing 2.6% of their total agricul- infl uenced the distribution of plant breeding tural Gross Domestic Product (AgGDP) in activities between the public and private
SUSAN BRAGDON (EDITOR) 112 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Fig. A2.2. Natural domains for public and private plant breeding programmes.*
Germplasm conservation
Basic Public research sector
Source material development
Line development
Private Cultivar sector development
Seed production
Low High Degree of commercial orientation
* Source: Morris, M.L. and B.S. Ekasingh. 2002. Plant Breeding Research in Developing Countries: What Roles for the Public and Private Sectors? In D. Byerlee and R. Echeverría (eds.) Agricultural Research Policy in an Era of Privatization: Experiences from the Developing World. The World Bank, and Inter- American Development Bank, Washington, DC, USA.
sectors across time, across crops and across In many industrialized countries, public political jurisdictions. A number of authors18 and private plant breeding sectors have have attempted to outline the factors deter- developed and coexisted for more than a mining the type and level of private sector century. Over the course of the 20th cen- plant breeding investment and thus the bal- tury, however, the general trend in these ance of investment between private and pub- countries has been for the private sector to lic sectors. These include the cost of research become increasingly active in plant breed- innovation; market structure factors such as ing. Available data suggest that over the the perceived size of a seed market and the last 30 or 40 years, trends in private and balance of farm size between large and small; public plant breeding investment in indus- industrial organization of the seed industry, trialized countries have followed trends in or the relative size of different seed companies; total agricultural research. In the USA, for and the ability to appropriate the returns to example, plant breeding as a percentage of research, through some combination of techni- total private agricultural research rose from cal means and intellectual property regime.19 3% in 1960 to 13% by the mid-1990s. Though
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 113
this might still not seem large, it was ac- of the value of production, these percent- companied by declines in the percentage of ages have tended to range between 0.3 and private research devoted to machinery (36% 0.9%.21 to 13%) and food products and processing At the level of cultivar development and (45% to 29%).20 Looking at available data in release, most discussions of plant breeding another way, private sector plant breeding in industrialized countries have focused on expenditures in the USA have increased the ability of private fi rms to appropriate a more than tenfold from 1960 to the mid- greater proportion of the returns to research. 1990s, for an annual rate of growth averag- Private and social returns from plant breed- ing well over 7%. In contrast, public sector ing may diverge in cases where fi rms are plant breeding expenditures rose more unable to profi t from the benefi ts of their slowly until the early 1980s, after which research. For example, in the past plant breed- they stagnated. They may have even fallen ing for self-pollinating crops such as wheat, in recent years. In the USA, private sector for which farmers can replant seed saved plant breeding expenditures have sur- from the previous harvest, was often done by passed public sector expenditures since the the public sector because private sector fi rms late 1980s (Fig. A2.3). In a few developed could not charge enough for seed to make country cases where plant breeding expen- plant breeding profi table. On the other hand ditures for a given crop, both public and open-pollinating crops like maize have per- private, can be calculated as a percentage mitted the development of commercial
Fig. A2.3. Real public and private sector expenditures on plant breeding, USA, research defl ator.*
500
400 Public sector — biological efficiency, pest and disease control, field crops
300
200 Private sector (all plant breeding) 1993 US dollars — research deflator
100
0.0 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000
* Source: Heisey, P.W., C.S. Srinivasan and C. Thirtle. 2001. Public Sector Plant Breeding in a Privatizing World. Agricultural Information Bulletin No. 772. Economic Research Service, US Department of Agriculture, Washington, DC.
SUSAN BRAGDON (EDITOR) 114 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
hybrids, for example as early as the 1930s in predominantly in the public sector. Some of the USA. These crops permit private fi rms to the additional factors uncovered by the em- protect some of their research investment pirical record include technical factors other through knowledge of the inbred combina- than hybridization (e.g. the need to gin and tion used to produce the hybrid, or knowl- de-lint cotton seed), market factors (e.g. crops edge of the composition of the inbred lines that are grown in rotation with other crops themselves. Farmers who replant seed of that already have strong private sector plant hybrid maize are faced with a marked dete- breeding programmes, such as soyabeans or rioration of performance. Another consider- wheat in the Eastern USA) and early research ation in appropriability of research returns sponsorship by the product output industry has been intellectual property protection, for (e.g. Canadian canola, and perhaps soyabeans example through plant variety protection as well).22 laws and, more recently in the USA, through Plant breeding research in most develop- the use of utility patents. ing countries is still dominated by the public Data on the origins of crop varieties sector for two reasons: the continued large planted in industrialized countries confi rm signifi cance of agriculture in the economies the importance of hybrid crops and intellec- of many developing countries, and the lim- tual property protection in determining pri- ited market opportunities for commercial vate sector plant breeding investment in seed sales to small farmers who may be sub- industrialized countries, as well as some of sistence oriented. However, plant breeding the other factors identifi ed above. The em- in developing countries is also being affected pirical data also bring to light some addi- by the commercialization of agriculture, the tional factors that were not previously privatization of national seed industries, the identifi ed. As expected, nearly all maize hy- strengthening of intellectual property rights, brids planted in developed countries today and the erosion of public research capacity.23 originate in the private sector, although as In most cases, monetary estimates of plant late as the 1970s in the USA, a substantial breeding research investments in developing proportion of the inbred lines used by private countries are not available, but some indica- seed companies originated in the public sec- tors do allow comparisons across crops, re- tor. Today nearly all maize inbreds, as well gions and institutions. as the fi nal commercial hybrids, are produced By the late 1990s, although 38% of the by the private sector. In the USA plant breed- maize area in developing countries was still ing for cotton, a self-pollinating crop, began planted to farm-saved seed (53% of the maize to shift from the public to the private sector area in non-temperate developing countries), at least 40 years ago, and today the private total private sector investment in maize sector dominates. The private sector is also breeding in these countries was greater than now much more prominent than the public public sector maize breeding investment. Just sector in plant breeding for soyabeans in the under one-half of the total came from multi- USA and canola in Canada, although this shift national companies, and another one-sixth has occurred more recently, in the past 20 or from private, nationally based companies. 30 years. Many wheat varieties in Europe, Overall, only about a third of the maize breed- particularly northern Europe, come from the ing investment was in the public sector. These private sector, as do wheat varieties in the overall trends were mirrored in Latin Amer- Eastern USA, where wheat is primarily a ica, the region with the largest maize breeding rotation crop. On the other hand wheat breed- expenditures, and in East, South and South- ing in Canada, Australia and the Great Plains east Asia. Only in Eastern and Southern Af- and Pacific Northwest of the USA is still rica did public sector maize breeding still
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dominate, accounting for just over 70% of the TAC review of CGIAR plant breeding pro- total.24 On the other hand, public sector wheat grammes, using a narrower defi nition, cal- breeding continues to be of overwhelming culated a total of about 83 million dollars importance in developing countries. Private (1993) invested in plant breeding and bio- sector wheat breeding programmes are only technology in 1999.29 found in the Southern Cone of South Amer- The reader will have noted that most of ica and Southern Africa, and less than 4% of the discussion of plant breeding investments developing country wheat area is planted to by both public and private sectors in both private sector wheat varieties, mainly in Ar- developing and developed countries has been gentina, Brazil and South Africa.25 Adoption focused on major fi eld crops, for which most data on high-yielding rice varieties also sug- of the data are available. It is presumed that gests that public sector varieties dominate in plant breeding for minor crops, to the extent rice as well.26 Hybrid rice is quite widely that it is done at all, is more likely to be con- grown in China, but all the cultivars grown ducted by the public than the private sector, have been developed by the public sector. although this is a matter of conjecture. First, Private sector soyabean varieties may be there is the matter of defi nition of minor important in Argentina and Brazil, but data crops. The defi nition may vary somewhat to state this defi nitively are not presently from country to country. Minor crops may available. consist of fi eld crops that are grown in a In addition to plant breeding investments rather limited area or for niche markets, fruits by national public sector agricultural re- and vegetables, or some kinds of forage search programmes, and national and mul- crop.30 The empirical record for the USA, tinational private sector companies, where some data based on number of breed- international agricultural research centres ers are available, is mixed. The preponder- (IARCs) have played an important role in ance of vegetable and melon breeding international plant breeding efforts.27 They appears to be done by the private sector, as have helped develop improved germplasm, is a greater proportion of forage legume played a role in the conservation of genetic breeding. Breeding for temperate fruit and resources, and helped to strengthen the nut crops, or forage grasses, on the other breeding capacity of national agricultural hand, is more likely to be conducted by the research systems (NARS) through training public sector.31 activities.28 The large impact they have had (for example over 75% of the developing Implications for the types of agricultural country spring bread wheat area worldwide technology that result, and how PGR are and 95% of the irrigated lowland rice area utilized in Asia are planted to IARC-derived modern The changing institutional structure of varieties) has been achieved despite the agricultural and plant breeding research has relatively small size of IARC breeding pro- several implications for the use of PGR. Two grammes. Accurate estimates of the exact of the most important issues are the types amount of IARC expenditures devoted to of technologies that are developed and the plant breeding depend on the assumptions ways in which access to PGR is maintained made, but by the late 1990s this may have or altered. been in the range of 150 million 1993 US dollars annually, using a broad defi nition of Implications for technology development plant breeding. This is down from a high Morris and Ekasingh32 summarize the pre- point of over 200 million 1993 US dollars ceding discussion by categorizing crops annually in the late 1980s (Fig. A2.4). The according to current incentives for private
SUSAN BRAGDON (EDITOR) 116 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Fig. A2.4. Total CGIAR investment and approximate CGIAR plant breeding investment.*
350 Total CG
300
250
200 Productivity + biodiversity
150
100 millions 1993 dollars - US GDP deflator
50
0 1970 1975 1980 1985 1990 1995 2000 2005
* Source: Consultative Group on International Agricultural Research (CGIAR). Various years. Annual Reports.; Alston, J.M., P.G. Pardey and V.H. Smith (eds.). 1999. Paying for Agricultural Productivity. Baltimore and London: published for IFPRI by The Johns Hopkins University Press.
sector investment in plant breeding research. crops grown by commercial producers They place crops on a two-dimensional grid, would include self-pollinating crops grown defi ned by whether the benefi ts from plant for market in developing countries and most breeding are non-appropriable or appropri- self-pollinating crops grown in developed able, and whether producers are non-com- countries. “Appropriable” crops grown by mercial or commercial. Of course, in reality commercial producers would include hy- both dimensions are continuous rather than brid crops and cotton grown for market in discrete, but the resulting definitions are developing countries, and also hybrids and useful. In Morris and Ekasingh’s scheme, cotton in developed countries. Incentives for “non-appropriable” crops grown by non- private sector plant breeding research are commercial producers would include both highest for “appropriable” crops grown by self- and open-pollinating crops grown for commercial producers, lowest for “non-ap- home consumption in developing countries, propriable” crops grown by non-commercial as well as vegetatively propagated crops in producers, and intermediate for the other two these countries. “Appropriable” crops grown categories. by non-commercial producers consist of hy- As the empirical survey has indicated, any brid crops grown for home consumption in particular crop–country–time combination developing countries. “Non-appropriable” will have to be examined in more detail to
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 117
determine the balance of private and public of plant varieties may take the form of research more precisely. Furthermore, there “impure public goods.” This means that these is another factor related to but not identical attributes meet some, if not all, of the defi ni- with private sector plant breeding investment tion of what economists call “public goods”. that will also help to determine the types of The basic economic argument in the case of technology that result, and the ways PGR are a public good is that private individuals tak- utilized. This is the breeding history of the ing into account only their own preferences crop. Breeding history is partially determined will produce less of the public good than by commercialization and appropriability would bring the greatest social benefi ts.34 factors, but it is also infl uenced by the total Disease resistance in plants is a particular size of the market and the nature of the breed- example of an impure public good.35 Public ing process. For example, wheat and rice are sector research programmes and policies are similar self-pollinating crops, but wheat has likely to devote relatively more effort to di- a longer breeding history because it is grown agnosing needs in the areas of nutrition and in both temperate and cool-season tropical environmental suitability of plant varieties, environments around the world, while rice and searching for genetic and management is more concentrated in hot environments, means to achieve these ends. particularly in Asia. Furthermore, a greater This is not to say that private breeding proportion of the wheat crop is probably research will neglect important areas like grown for market. Even focusing on devel- disease research. Any private company that oped countries, crops like wheat and maize wishes to stay in business will attempt to would have a broader history of breeding supply farmers with varieties having good effort than crops like oats or rye, because of disease resistance, if that is an important the relative market sizes. Wheat also has a consideration in the target area. However in somewhat longer breeding history than research and seed systems with a long his- maize, because the pedigree breeding used tory of development, opportunities for for wheat was somewhat simpler to develop complementary research may develop. The than the multiplicity of breeding possibilities public sector may take the lead in doing found for maize, especially before the details research on basic mechanisms of disease of commercial hybrid production were resistance and fi nding a wide variety of pos- worked out. And of course crops that repro- sible sources of that resistance. The private duce through seed nearly always have a more sector may devote more effort to developing intensive breeding history than crops that are readily identifiable, proprietary genetic vegetatively propagated. mechanisms for resistance such as the Bt The degree of private sector involvement incorporated into plants through genetic in plant breeding may have several implica- engineering. tions for the type of technology developed. Perhaps most obviously, the private sector is Implications for access likely to give more emphasis than the public The main avenue through which growing sector to the development of commercial hy- privatization of plant breeding has affected brids in crops that have not already been suc- access to PGR has been through the increas- cessfully hybridized for commercial ing emphasis on proprietary technology and purposes.33 the protection of crop varieties or individual But there are other areas in which private genetic constructs through intellectual prop- and public sector plant breeding may take erty institutions. The traditional view of PGR somewhat different approaches. Nutritional was that they were “the common heritage of characteristics or environmental suitability mankind”, and for many crops and breeding
SUSAN BRAGDON (EDITOR) 118 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
institution the maintained ideal was “the free involved, they do increase the transaction exchange of germplasm”. Obviously there costs of PGR distribution and exchange, and were different degrees to which this ideal ob- thus have the effect of slowing access. These tained in practice. Private fi rms in advanced transaction costs include the costs of tracking hybrid maize seed industries tend to rely the movement and use of PGR. almost completely on their own germplasm, At least two important factors will interact even though many years ago this germplasm to determine the future effects of increasing was obtained from public sources, and, ulti- privatization and intellectual property pro- mately, from farmers. tection on access to PGR. The fi rst will be the Beginning in the 1980s, academic research- continually evolving national and interna- ers and agricultural activists motivated by tional institutional environment concerning increasing proprietary control of PGR began the application of intellectual property laws to criticize the growing application of intel- to living material. Although the Trade Re- lectual property rights to these genetic re- lated Aspects of Intellectual Property Rights sources. Their arguments focused on the role (TRIPS) agreement of the World Trade Orga- of farmers, particularly in the developing nization (WTO) requires all members to apply world, in developing the original crop land- some form of intellectual property protection races that have been the basis of all subse- to plants, there are still strong differences of quent breeding. IPR, in some views, opinion over the appropriate types and levels facilitated the exploitation of gene-rich farm- of such protection. Recent negotiations over ers in developing countries by multinational the International Treaty on Plant Genetic corporations. Although much of the argu- Resources were marked by the refusal of ment focused on “farmers’ rights”, rather groups of countries to include some crops in than the rights of countries, increasingly the a negotiated multilateral system of materials ownership of PGR was seen as a matter of from genebanks. The negotiations also fea- national sovereignty. Debates over PGR en- tured disagreements over language defi ning tered the international policy realm through restrictions on intellectual property protec- trade negotiations, the Convention on Bio- tion on germplasm based on materials drawn logical Diversity, the Cartagena Protocol on from the proposed multilateral system.38 Biosafety, and, most recently, the Interna- The second factor that will infl uence the tional Treaty on Plant Genetic Resources for future relationship between IPR and access Food and Agriculture.36 to PGR will be evolving science. Currently, As a result of both the changed research some of the most notorious international environment and the increasing body of in- disputes over patenting of plant genetic ternational undertakings that have effects on materials have involved crops with rela- access to PGR, exchange of PGR has for some tively short breeding histories (e.g. beans, time come under increasing restrictions. Even basmati rice). In these situations, patent institutions such as the US National Plant protection may be granted to material that Germplasm System (NPGS), the world’s larg- appears little different from germplasm est national genebank and largest interna- grown for generations by farmers in devel- tional distributor of PGR, and the CGIAR oping countries. In the case of crops with genebanks and breeding programmes either longer breeding histories, there are instanc- use or are moving toward the use of material es of complicated patterns of materials transfer agreements (MTAs) in germplasm transfer through a number of countries and distribution.37 Although these may only have institutions and eventual patenting (e.g. the the intent of preventing further application XA 21 gene for bacterial blight resistance, of intellectual property protection to the PGR which originally came from rice). To date,
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there have been few cases of “vertical” dis- There are several practical problems, putes—disputes over the contributions however, in maintaining support for na- made by different actors in the breeding tional and international public sector PGR process—over ownership to PGR used in conservation activities. First is the relatively crops with a long breeding history.39 This is stagnant level of public sector research re- perhaps because breeders for these crops sources noted above. In rich countries there tend to work with elite materials, and the have been calls for more resources, reorgani- chance of fi nding a single highly profi table zation, and more extensive characterization allele that is easily incorporated into these and database management activities within elite materials is small. New molecular national plant genetic resource systems. methods, however, may result in the discov- However, political support for public agri- ery of useful alleles in landraces or wild cultural research systems has been built in relatives, even those that have been relegat- part on the production of visible, “down- ed to the sidelines because of their perceived stream” results, thus making it diffi cult to lack of useful genetic material.40 On the one place investment in PGR conservation high hand, hope of exploitation of the perceived on the political agenda. Furthermore, a very economic value of these alleles may lead to large component of international PGR con- further restrictions on the exchange of PGR. servation will be in developing countries, and On the other hand, advanced molecular it will need to be supported by the interna- methods may lead to greater recognition of tional community. the genetic combinations necessary to A related problem will be working out the achieve desired results, and thus to fewer mechanisms of support to PGR conservation. hold-ups based on a single gene. The International Treaty on Plant Genetic Resources has proposed one such mecha- nism, in which commercial use of genebank Implications for the conservation of PGR materials will provide royalties to support The economics literature on the valuation of conservation. However, as we have seen not genetic resources at any stage in the process all potentially important crops have been from discovery to utilization in a commeri- included in this treaty; the USA, with the cal product is fraught with controversy, not largest national genebank, abstained from the least because of differing assumptions used. treaty, although it is expected to abide by its Nonetheless, there is considerable consen- provisions; details about tracking the fl ows sus on several areas. First, both in situ and ex of genetic resources, the levels of royalties to situ conservation of PGR are highly valuable be paid, and the distribution of those royalties activities, with positive social benefi ts. Sec- have not yet been worked out; and the an- ond, the further back in the breeding process nual royalties are not realistically expected to one goes, the fewer private incentives there be more than a few million dollars, and that are. This may be because of differences be- only beginning some years from now.42 Al- tween social and private discount rates and ternative mechanisms might involve other risk preferences. Thus, conservation of PGR private support for PGR conservation, based is in large part a public sector activity, even not on royalties but on direct payments un- if large private fi rms maintain their own col- related to the exact PGR used in breeding. lections of primarily elite breeding materials. Again, such agreements would depend on Even private sector organizations such as the the development of mutual trust and careful American Seed Trade Association argue for protocols. The LAMP (Latin American Maize the fundamentally public nature of PGR Project) and subsequent GEM (Genetic En- conservation.41 hancement of Maize) project might provide
SUSAN BRAGDON (EDITOR) 120 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
one model for some possible private support 2001. Economic Issues in Agricultural Biotech- to PGR conservation activities.43 nology. Agricultural Information Bulletin No. Such measures, however, are likely to 762. Economic Research Service, U.S. Depart- ment of Agriculture, Washington, DC. prove most successful for crops for which 6 Fertilizers and crop protection inputs such as there is some commercial interest. Shortages herbicides straddle the boundary between chem- of funds for PGR conservation are likely to icals and agricultural inputs. [Enríquez, J. 1998. be particularly acute for crops for which there Genomics and the World’s Economy. Science 281 have also been shortages of funds for crop (August 14, 1998):925-926]. 7 improvement, for example important food Wright, B. 2000. IPRs in Biotechnology: Agricul- tural Applications. Presentation at the sympo- crops such as cassava. PGR conservation for sium, Intellectual Property Rights: How Far these crops is likely to continue to be funded Should They Be Extended? 3 February 2000, Board almost entirely with public sector resources. on Science, Technology, and Economic Policy, Intermediate between crops grown fairly National Academy of Sciences, Washington, DC. 8 widely on a commercial scale and crops with Novartis and AstraZeneca were themselves products of mergers in the mid- to late 1990s. little commercial interest are crops that might 9 Empresas la Moderna also has a growing invest- reach somewhat more specialized markets. ment in biotechnology. These crops are most likely to be marked by 10 Pardey, P.G. and N.M. Beintema. 2001. Slow IPR disputes over PGR, but also relatively Magic: Agricultural R&D a Century After Mendel. little private interest in PGR conservation. IFPRI Food Policy Report. IFPRI, Washington, DC. 11 Over the long run, creating a more optimal Pardey, P.G. and N.M. Beintema. 2001. Slow Magic: Agricultural R&D a Century After Mendel. system of PGR conservation will require both IFPRI Food Policy Report. IFPRI, Washington, DC. greater resources and trust of public and 12 USDA Economic Research Service. 2000. Agri- private sectors in both the developing and cultural Resource and Environmental Indicators, developed worlds, as well as careful attention 2000. Washington, DC: Resource Economics Di- to building appropriate institutions. Privati- vision, Economic Research Service, USDA. http: zation of agricultural research is unlikely to //www.ers.usda.gov/Emphases/Harmony/ issues/arei2000/ be reversed, but PGR conservation is a re- 13 Pardey, P.G. and N.M. Beintema. 2001. Slow search area for which there are strong eco- Magic: Agricultural R&D a Century After Mendel. nomic arguments for increasing public IFPRI Food Policy Report. IFPRI, Washington, DC. investment. 14 Agricultural research as a percentage of AgGDP did decline in sub-Saharan Africa between 1985 and 1995. Endnotes 15 Pardey, P.G. and N.M. Beintema. 2001. Slow 1 Throughout this paper, no information will be Magic: Agricultural R&D a Century After Mendel. presented for Eastern Europe and the Former IFPRI Food Policy Report. IFPRI, Washington, DC. Soviet Union, countries for which data are par- 16 Morris, M.L. and B.S. Ekasingh. Plant Breeding ticularly diffi cult to fi nd. Research in Developing Countries: What Roles for 2 Pardey, P.G. and N.M. Beintema. 2001. Slow the Public and Private Sectors? In D. Byerlee and R. Magic: Agricultural R&D a Century After Mendel. Echeverría (eds.) Agricultural Research Policy in an IFPRI Food Policy Report. IFPRI, Washington, DC. Era of Privatization: Experiences from the Develop- 3 Pray, C.E. and D. Umali-Deininger. 1998. The Pri- ing World. CABI, Wallingford, UK. (In press) vate Sector in Agricultural Research Systems: Will 17 Frey, K.J. 1996. National Plant Breeding Study- It Fill the Gap? World Development 26:1127-1148. 1. Human and Financial Resources Devoted to 4 Pardey, P.G. and N.M. Beintema. 2001. Slow Plant Breeding Research and Development in the Magic: Agricultural R&D a Century After Mendel. United States in 1994. Special Report 98, Iowa IFPRI Food Policy Report. IFPRI, Washington, DC. Agriculture and Home Economics Experiment 5 Shoemaker, R. (ed.), with contributions from J. Station. Iowa State University, Ames. Harwood, K. Day-Rubenstein, T. Dunahay, P. 18 Griliches, Z. 1957. Hybrid Corn: An Explora- Heisey, L. Hoffman, C. Klotz-Ingram, W. Lin, L. tion in the Economics of Technological Change. Mitchell, W. McBride, and J. Fernandez-Cornejo. Econometrica 25:501-522.
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Rusike, J. 1995. An Institutional Analysis of the for the Public and Private Sectors? In D. Byerlee Maize Seed Industry in Southern Africa. Ph.D. and R. Echeverría (eds.) Agricultural Research dissertation. Michigan State University, East Policy in an Era of Privatization: Experiences Lansing, Michigan. from the Developing World. CABI, Wallingford, Morris, M.L. (ed.) 1998. Maize Seed Industries in UK. (In press) Developing Countries. Lynne Rienner Publish- 24 Morris, M.L. Impacts of International Maize ers, Boulder, Colorado. Breeding Research in Developing Countries, Heisey, P.W., M.L. Morris, D. Byerlee and M.A. 1966-98. CIMMYT, Mexico, DF. (in press) López-Pereira. 1998. Economics of Hybrid Maize 25 Heisey, P.W., M.A. Lantican and H.J. Dubin. Adoption. In M.L. Morris (ed.), Maize Seed In- Assessing the Benefi ts of International Wheat dustries in Developing Countries. Lynne Rienner Breeding Research in the Developing World: The Publishers, Boulder, Colorado. Global Wheat Impacts Study, 1966-1997. CIM- Heisey, P.W., C.S. Srinivasan and C. Thirtle. MYT, Mexico, DF. 2001. Public Sector Plant Breeding in a Privatiz- 26 Morris, M.L. and B.S. Ekasingh. Plant Breeding ing World. Agricultural Information Bulletin No. Research in Developing Countries: What Roles 772. Economic Research Service, US Department for the Public and Private Sectors? In D. Byerlee of Agriculture, Washington, DC. and R. Echeverría (eds.) Agricultural Research Morris, M.L. and B.S. Ekasingh. Plant Breeding Policy in an Era of Privatization: Experiences Research in Developing Countries: What Roles from the Developing World. CABI, Wallingford, for the Public and Private Sectors? In D. Byerlee UK. (In press) and R. Echeverría (eds.) Agricultural Research 27 Evenson, R. and D. Gollin (eds). 2001. Crop Policy in an Era of Privatization: Experiences Variety Improvement and its Effect on Produc- from the Developing World. CABI, Wallingford, tivity: The Impact of International Agricultural UK. (In press) Research. CABI, Wallingford, U.K. 19 Heisey, P.W., C.S. Srinivasan and C. Thirtle. 28 Morris, M.L. and B.S. Ekasingh. Plant Breeding 2001. Public Sector Plant Breeding in a Privatiz- Research in Developing Countries: What Roles ing World. Agricultural Information Bulletin No. for the Public and Private Sectors? In D. Byerlee 772. Economic Research Service, U.S. Depart- and R. Echeverría (eds.) Agricultural Research ment of Agriculture, Washington, DC. Policy in an Era of Privatization: Experiences 20 The other component of private agricultural re- from the Developing World. CABI, Wallingford, search in the USA that demonstrated large gains UK. (In press) was agricultural chemicals, which rose from 29 Ibid. 13% to 37% of the total between 1960 and the 30 For some U.S. defi nitions, see Frey, K.J. 1997. mid-1990s. [USDA Economic Research Service. National Plant Breeding Study—II. National 2000. Agricultural Resource and Environmental Plan for Promoting Breeding Programs for Indicators, 2000. Washington, DC: Resource Minor Crops in the U.S. Special Report 100, Iowa Economics Division, Economic Research Service, Agriculture and Home Economics Experiment USDA. http://www.ers.usda.gov/Emphases/ Station. Iowa State University, Ames. Harmony/issues/arei2000/] 31 Frey, K.J. 1996. National Plant Breeding Study— 21 The notable exception is canola in Canada. In 1. Human and Financial Resources Devoted to recent years, over 4% of the annual value of Plant Breeding Research and Development in the Canadian canola production has been invested United States in 1994. Special Report 98, Iowa in canola improvement research. [Heisey, P.W., Agriculture and Home Economics Experiment C.S. Srinivasan and C. Thirtle. 2001. Public Sector Station. Iowa State University, Ames. Plant Breeding in a Privatizing World. Agricul- 32 Morris, M.L. and B.S. Ekasingh. Plant Breeding tural Information Bulletin No. 772. Economic Research in Developing Countries: What Roles Research Service, US Department of Agriculture, for the Public and Private Sectors? In D. Byerlee Washington, DC.] and R. Echeverría (eds.) Agricultural Research 22 Heisey, P.W., C.S. Srinivasan and C. Thirtle. Policy in an Era of Privatization: Experiences 2001. Public Sector Plant Breeding in a Privatiz- from the Developing World. CABI, Wallingford, ing World. Agricultural Information Bulletin No. UK. (In press) 772. Economic Research Service, U.S. Depart- 33 The waxing and waning of enthusiasm for com- ment of Agriculture, Washington, DC. mercial wheat hybrids is instructive. See, e.g.: 23 Morris, M.L. and B.S. Ekasingh. Plant Breeding Knudson, M.K. and V.W. Ruttan. 1988. Research Research in Developing Countries: What Roles and Development of a Biological Innovation:
SUSAN BRAGDON (EDITOR) 122 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
Hybrid Wheat. Food Research Institute Studies Potential from the Wild. Science 277 (22 August, 21(1):45-68; Lucken, K.A. 1987. Hybrid Wheat. 1997):1063-1066. In E.G. Heyne (ed.), Wheat and Wheat Improve- 41 American Seed Trade Association (ASTA). ment. American Society of Agronomy, Crop Sci- 1994. ASTA Corn and Sorghum Basic Research ence Society of America, and Soil Science Society Committee: Recommendations for Public Corn of America, Madison, Wisconsin; Jordaan, J.P. and Sorghum Research. American Seed Trade 1996. Hybrid Wheat: Advances and Challenges. Association, Washington, DC. In M.P. Reynolds, S. Rajaram, and A. McNab 42 Charles, D. 2001. Seeds of Discontent. Science 294 (eds.), Increasing Yield Potential in Wheat: (October 26, 2001):772-775. Breaking the Barriers. CIMMYT, Mexico, D.F.; 43 Knudson, M.K. 2000. The Research Consortium Pickett, A.A. and N.W. Galwey. 1997. A Further Model for Agricultural Research. In K.O. Fuglie Evaluation of Hybrid Wheat. Plant Varieties and and D.E. Schimmelpfennig (eds.), Public-Private Seeds 10:15-32. Collaboration in Agricultural Research: New 34 Alternatively the result of private individuals Institutional Arrangements and Economic Impli- acting in isolation will be too much production cations. Iowa State University Press, Ames, Iowa. of a “public bad” such as pollution. 35 Heisey, P.W., C.S. Srinivasan and C. Thirtle. 2001. Public Sector Plant Breeding in a Privatiz- ing World. Agricultural Information Bulletin No. 772. Economic Research Service, US Department of Agriculture, Washington, DC. 36 Charles, D. 2001. Seeds of Discontent. Science 294 (October 26, 2001):772-775. Van Dusen, E. 2001. The International Treaty on Plant Genetic Resources for Food and Agricul- ture. Presentation at USDA Economic Research Service, December 11, 2001. 37 Smale, M., K. Day-Rubenstein, A. Zohrabian and T. Hodgkin. 2001. The Demand for Crop Genetic Resources: International Use of the US National Plant Germplasm System. EPTD Discussion Pa- per No. 82. Environment and Production Tech- nology Division (EPTD), IFPRI, Washington, DC. 38 As an example of the complexities involved, at Treaty negotiations, US NPGS representatives were willing to accept language eventually ratifi ed, but the USA abstained from approv- ing the treaty because industry representatives disagreed with any restrictions on patenting that would contradict US law. It is far from clear, however, that even within the USA, the country that has gone further than any other in applying patent protection to plants, the fi nal determina- tion of the boundaries of patent law as applied to living material has been reached. Charles, D. 2001. Seeds of Discontent. Science 294 (October 26, 2001):772-775; Van Dusen, E. 2001. The International Treaty on Plant Genetic Resources for Food and Agricul- ture. Presentation at USDA Economic Research Service, December 11, 2001.] 39 Disputes instead tend to be “horizontal”—for ex- ample, between two hybrid maize seed companies. 40 Tanksley, S.D. and S.R. McCouch. 1997. Seed Banks and Molecular Maps: Unlocking Genetic
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Acronyms and abbreviations
ABS Access and Benefi t-Sharing AgGDP agricultural gross domestic product AIA Advanced Informed Agreement CBD Convention on Biological Diversity CGIAR Consultative Group on International Agricultural Research COGENT Coconut Genetic Resources Network COP Conference of the Parties DSU Dispute Settlement Understanding EU European Union FAO Food and Agriculture Organization of the United Nations FTO freedom to operate GATT General Agreement on Tariffs and Trade GEF Global Environment Facility GEM Genetic Enhancement of Maize GI geographical indicators GMO genetically modifi ed organism GR genetic resources IARC International Agricultural Research Centre IARC International Agricultural Research Centre IDRC International Development Research Centre IP intellectual property IPGRI International Plant Genetic Resources Institute IPPC International Plant Protection Convention IPR intellectual property right(s) IRD Informal Research and Development IT International Treaty ITPGRFA International Treaty on Plant Genetic Resources for Food and Agriculture IU International Undertaking (on Plant Genetic Resources) LAMP Latin American Maize Project LMO living modifi ed organism LMOs—FFP living modifi ed organisms—foods for feed or processing MTA material transfer agreement NARS National Agricultural Research System NGO non-governmental organization NPGS National Plant Germplasm System PBR Plant Breeders’ Rights PGR plant genetic resources PGRFA plant genetic resources for food and agriculture PIC Prior Informed Consent PVP plant variety protection R&D research and development RAFI Rural Advancement Foundation International SADC Southern African Development Community SPS Sanitary and Phytosanitary Agreement SPS Syndicat des producteurs de semences sélectionnées TAC Technical Advisory Committee TBT Technical Barriers to Trade
SUSAN BRAGDON (EDITOR) 124 INTERNATIONAL LAW OF RELEVANCE TO PLANT GENETIC RESOURCES
TOR Terms of Reference TRIPS Trade Related Aspects of Intellectual Property Rights UNEP United Nations Environment Programme UPOV International Union for the Protection of New Varieties of Plants (Union pour la protection des obtentions végétales) WIPO World Intellectual Property Rights Organization WTO World Trade Organization
INTERNATIONAL PLANT GENETIC RESOURCES INSTITUTE ISSUES IN GENETIC RESOURCES NO. 10 125
ISBN 92-9043-614-X SUSAN BRAGDON (EDITOR)